Delhi High Court judgment in Shivani Bhatnagar Murder Case

CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 1 of 84
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 12.10.2011
+ CRL.A. 357/2008
RAVI KANT SHARMA … Appellant
- versus -
STATE … Respondent
Advocates who appeared in this case:
For the Appellant : Mr Sushil Kumar, Sr. Advocate with Mr Sudarshan Rajan
and Md. Qamar Ali
For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with
Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh
Prabhakar and Mr Mohit Mudgil
AND
+ CRL.A. 486/2008
SHRI BHAGWAN SHARMA … Appellant
- versus -
STATE … Respondent
Advocates who appeared in this case:
For the Appellant : Mr Siddharth Luthra, Sr. Advocate with Mr T.S. Ahuja,
Mr Madhav Khurana, Mr Neeraj Gaur & Mr Amit Sharma
For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with
Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh
Prabhakar and Mr Mohit Mudgil
AND
+ CRL.A. 396/2008
SATYA PRAKASH SHARMA … Appellant
- versus -CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 2 of 84
STATE … Respondent
Advocates who appeared in this case:
For the Appellant : Mr Sarfaraz Hussain with Mr Masood Hussain
For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with
Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh
Prabhakar and Mr Mohit Mudgil
AND
+ CRL.A. 338/2008
PRADEEP SHARMA … Appellant
- versus -
STATE … Respondent
Advocates who appeared in this case:
For the Appellant : Mr D.B. Goswami with Mr S. Gaurav Saran
For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with
Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh
Prabhakar and Mr Mohit Mudgil
AND
+ CRL.A. 751/2009
STATE … Appellant
- versus –
VED PRAKASH SHARMA … Respondent
Advocates who appeared in this case:
For the Appellant : Mr Pawan Sharma, Standing Counsel for the State with
Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh
Prabhakar and Mr Mohit Mudgil
For the Respondent : Mr Mahavir Sharma
AND
+ CRL.A. 752/2009
STATE … AppellantCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 3 of 84
- versus –
VED PRAKASH @ KALU … Respondent
Advocates who appeared in this case:
For the Appellant : Mr Pawan Sharma, Standing Counsel for the State with
Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh
Prabhakar and Mr Mohit Mudgil
For the Respondent : Mr N. Hariharan with Mr Akshai Malik
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
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES
BADAR DURREZ AHMED, J
1. These six appeals arise out of the common judgment dated 18.03.2008
delivered by the Additional Sessions Judge, Karkardooma Courts, Delhi whereby the
appellants Ravi Kant Sharma, Shri Bhagwan, Satya Prakash and Pradeep Sharma were
convicted for the offence punishable under Section 120-B read with Section 302 IPC
for hatching a criminal conspiracy to kill Shivani Bhatnagar (deceased), who was
actually killed by Pradeep Sharma in execution of the said conspiracy. The other
accused were Ved Prakash Sharma and Ved Prakash @ Kalu, who were acquitted of
all charges. The State has preferred two appeals (Crl. A. 751/2009 & Crl. A.
752/2009) in respect of Ved Prakash Sharma and Ved Prakash @ Kalu against the
said acquittals. The impugned judgment dated 18.03.2008 was delivered in Sessions
Case No. 14/2006 and arose out of the FIR No. 21/1999 under Sections
302/201/403/404/411/ 419/392/397/120-B/34 IPC registered at Police Station
Mandawali on 23.01.1999.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 4 of 84
2. All the convicted persons were, by an order dated 24.03.2008 passed by the
said Additional Sessions Judge, Karkardooma Courts, Delhi, sentenced to
imprisonment for life. Convict R. K. Sharma was also directed to pay a fine of
` 20,000/- while the other three convicts, namely, Shri Bhagwan, Satya Prakash and
Pradeep Sharma were directed to pay a fine of ` 10,000/- each. In default of the
payment of the said fines, the convicts were directed to undergo an additional period
of six months’ simple imprisonment.
3. The main charge framed against all the six accused on 03.03.2003 was that all
of them, during December, 1998 to January, 1999 at Delhi and other places, had
agreed to commit the murder of Shivani Bhatnagar as she had threatened R. K.
Sharma to spoil his life and career, after developing physical intimacy with him. As
per the charge, it had also been agreed to dishonestly misappropriate a camera from
her house as also a gold chain by having it removed from her dead body and also to
destroy evidence regarding the commission of murder. The charge goes on to state
that in pursuance of the said criminal conspiracy, all the six accused aided and abetted
the commission of the murder of Shivani Bhatnagar and that Satya Prakash and
Pradeep Sharma went to Navkunj Aparments, Patparganj, Delhi on 23.01.1999 where
the accused Pradeep Sharma falsely personated himself as Rajiv Bhatnagar and
entered into B-42, Navkunj Apartments, the residence of Shivani Bhatnagar on the
pretext of extending an invitation of marriage and thereafter, murdered her by
strangulating her with a piece of electric wire and by stabbing knives on her neck at
about 3/3:30 pm. It is further alleged in the charge that the accused Pradeep Sharma,
thereafter, in pursuance of the said criminal conspiracy, removed a Kodak camera and
certain documents from the said flat and a gold chain from the body of the deceased
Shivani Bhatnagar. It is further alleged that the sim card corresponding to the mobile
phone number 9811008825 was destroyed by the accused Satya Prakash. It was,CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 5 of 84
therefore, alleged that in this manner all the six accused had committed an offence
under Section 120-B read with Sections 302/201/403/404 IPC within the cognizance
of the said Court. All the accused pleaded not guilty to the said charge as also to the
other ancillary charges framed separately and claimed trial.
4. Pradeep Sharma was additionally charged under Section 404 IPC for having
dishonestly misappropriated the gold chain by removing the same from the dead body
of Shivani Bhatnagar. He was also charged under Section 419 IPC for having cheated
by falsely personating himself to be Rajiv Bhatnagar and entering the same in the
visitors’ register of Navkunj Apartments as also by representing himself to be Rajiv
Bhatnagar to Shivani Bhatnagar at the time of entering the apartment. Pradeep
Sharma was, however, acquitted of this charge.
5. Pradeep Sharma and Satya Prakash Sharma were also jointly charged for
having committed an offence punishable under Section 302/34 IPC for having
committed the murder of Shivani Bhatnagar in furtherance of their common intention
to kill her. This charge was not accepted by the learned Additional Sessions Judge
and they were not convicted under Section 302/34 IPC.
6. Satya Prakash Sharma was also charged for having committed an offence
punishable under Section 201 IPC for allegedly causing the destruction of the sim card
of mobile phone No. 9811008825 with the intention to screen himself and other
offenders from legal punishment. This charge was also found to be not established
and, therefore, Satya Prakash Sharma was acquitted of the same. The accused Ved
Prakash Sharma and Ved Prakash @ Kalu were charged for having committed an
offence punishable under Section 392/397 read with Section 34 IPC for having
committed, in furtherance of their common intention, robbery of a Kodak camera and
a gold chain belonging to Shivani Bhatnagar and at the time of the commission of theCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 6 of 84
robbery, for having caused or attempted to cause death or grievous hurt to the said
Shivani Bhatnagar. This charge was also not established and both the accused,
namely, Ved Prakash Sharma and Ved Prakash @ Kalu were acquitted of the same. A
charge under Section 404 IPC in respect of the gold chain belonging to Shivani
Bhatnagar was also framed against Ved Prakash Sharma. He was, however, acquitted
of this charge.
7. Lastly, a separate charge was framed against the accused Ved Prakash @ Kalu
under Section 411 IPC in respect of the Kodak Camera which was allegedly recovered
consequent to a disclosure statement made by the said accused, who had allegedly
dishonestly received and retained the same believing the same to be stolen property.
The accused Ved Prakash @ Kalu was acquitted of this charge also.
PROSECUTION’s CASE:
8. Mrs Shivani Bhatnagar (deceased) used to work with Asian Age and in
February, 1997, she joined Indian Express in the capacity of Principal Correspondent.
She was looking after the legal and constitutional implications covering investigating
agencies such as the CBI and Intelligence Bureau and in this connection she used to
cover the Prime Minister’s Office in the year 1997. Her husband, Mr Rakesh
Bhatnagar was also a journalist and was working as a Legal Editor with the Times of
India. Both of them were living together at B-42, Navkunj Apartments, Patparganj,
Delhi.
9. On 22.01.1999, Rakesh Bhatnagar’s brother-in-law B. S. Bhatnagar, who was a
resident of Panchkula, had come to stay with them. At about 10 am on 23.01.1999,
the said B. S. Bhatnagar left the house as he had to attend a meeting. Rakesh
Bhatnagar also left the apartment at 12:15 pm and as a consequence, the only personsCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 7 of 84
left in the said flat were Shivani Bhatnagar, their infant son Tanmay and maid servant
Vally. At about 3:30 pm, Shivani Bhatnagar informed Rakesh Bhatnagar over the
phone that one person from the Tribune, Chandigarh had brought an invitation card
concerning the marriage of one Mr Adhikari’s son. The phone was handed over to the
said person, who had come with the invitation card and he also had a talk with Rakesh
Bhatnagar and while doing so, he gave his name as ‘Sharma’.
10. At about 5 pm, on the same day, Rakesh Bhatnagar received a phone call from
his brother-in-law B. S. Bhatnagar, who told him that he was not able to open the door
of the flat. Rakesh Bhatnagar asked him to make another attempt and at about 5:30
pm, the said B. S. Bhatnagar again made a phone call to Rakesh Bhatnagar and
informed him that Shivani Bhatnagar had been stabbed in their apartment and that he
should come immediately.
11. Rakesh Bhatnagar left his office and on his arrival at the flat, he found that
Shivani Bhatnagar was lying in the front bedroom of the said apartment and her neck
was bleeding. A kitchen knife was found stuck to her neck and another knife was
lying on her body. He also saw a tawa and a piece of yellow electric wire lying
around her body. The articles lying in the three rooms were scattered and the almirahs
were found to be ransacked. He also saw two cups of tea, namkeen, biscuits, an
empty glass of water and one sweetmeat box lying near the sofa.
12. In the meanwhile, one Parul, who was a news reporter with the Times of India,
had informed the police control room at about 6:13 pm that at B-42, Navkunj
Apartments, Patparganj, near mother dairy, a woman had been stabbed. The exact
words used by her were:-
“aurat ko chaku mar hua hai”.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 8 of 84
This information was reduced to writing in the form of DD No. 13-A, Exhibit
PW50/1. Thereafter, an FIR was registered at Police Station Mandawali, under
Section 302 IPC and SI Radhey Shyam arrived at the spot at about 6:35 pm. He was
followed by Inspector Satya Pal Singh and the Crime Team.
13. Shivani Bhatnagar was taken to Swami Dayanand Hospital, where she was
declared as having been brought dead. However, on the persuasion of Rakesh
Bhatnagar, the deceased was also taken to Apollo Hospital, where also, she was
declared as having been brought dead.
14. The Crime Team lifted 10 chance prints from the sweetmeat box, wooden
bowls containing namkeen and biscuits, cups of tea and the refrigerator. On
25.01.1999, the Crime Team further lifted chance prints from a perfume bottle and
lipstick. Blood samples were also seized.
15. According to the prosecution, the person who brought the invitation and the
sweetmeat box and who had given his name as ‘Sharma’ while speaking to Rakesh
Bhatnagar over the phone, was the killer and he had entered Navkunj Apartments at
2:40 pm on 23.01.1999 after making an entry in the register maintained at the gate,
giving his name as Rajiv Bhatnagar and his address as House No. 311, Tribune
Colony, Chandhigarh and indicating that the apartment to be visited was B-42 for the
purpose of an invitation. According to the said register, the said person departed from
Navkunj Apartments at 15:10 hours.
16. The post mortem examination of the dead body of Shivani Bhatnagar was
conducted by a Board of Doctors consisting of Dr R. K. Sharma, Additional Professor,
Department of Forensic Medicine (AIIMS), Dr D. N. Bhardwaj, Associate Professor
and Dr S. K. Gupta, Assistant Professor. As per the post mortem report, the following
injuries were found on the dead body:-CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 9 of 84
(i) Stab wound measuring 2 cm x .75 cm (on the left front of chest)
elliptical in shape.
(ii) Stab wound elliptical in shape over left neck measuring 1.5 cm x
0.5 cm x 1 cm deep.
(iii) Stab wound elliptical in shape over left neck measuring 1 cm x 0.5
cm over right neck.
(iv) Stab wound measuring 1.5 cm x 0.5 cm situated 2 cm below right
mandible and 9 cm from right mastoid over right neck.
(v) Stab wound 2 cm x 0.75 cm x subcutaneous tissue deep over right
neck situated 0.4 cm from midclavicular point.
(vi) Incised wound 1 cm superficial over right angle of mandible.
(vii) Contused abrasion measuring 4 cm x 3 cm over front of the neck
situated 12 cm below chin.
(viii) Multiple contused abrasions over lower lobe neck and front of
upper left chest.
(ix) Multiple contused abrasions over lower right neck ranging from 0.2
cm x 0.3 cm in an area of 12 cm x 6 cm.
(x) Ligature mark around the neck measuring in breadth 0.5 cm
circumference 35 cm.
In their opinion, the cause of death of Shivani Bhatnagar was asphyxia as a result of
ante mortem strangulation by ligature. Injuries No. 1-6 were caused by a sharp edged
weapon and were said to be ante mortem in nature. As per the post mortem report,
injuries No. 1 and 4 were sufficient to cause death of a person in the ordinary course
of nature.
17. Appellant R. K. Sharma, an IPS officer, was posted as an Officer on Special
Duty in the Prime Minister’s Office from 02.07.1997 to 23.04.1998. He was also
posted as a Director (Vigilance), Air India at Mumbai from 23.04.1998 to 30.06.2000.
In connection with his said duties, the appellant R. K. Sharma was said to be inCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 10 of 84
possession of various secret/ classified documents. It is the prosecution case that
Shivani Bhatnagar used to visit him in the Prime Minister’s Office to gather
information and their frequent meetings developed into intimacy. The appellant R. K.
Sharma used to make frequent phone calls to Shivani Bhatnagar and vice versa. They
also used to meet each other after office hours. It is the case for the prosecution that
Shivani Bhatnagar had gone to London and remained there from 08.03.1998 to
07.06.1998 except for a period from 08.04.1998 to 29.04.1998, when she had returned
to India as she was unwell. It is alleged that during her stay in London, she had
confided in her roommate Smt. Saijal Shah (PW83) that she was deeply in love with
the appellant R. K. Sharma and that she was also pregnant.
18. It is the case of the prosecution that the relationship between the appellant R.
K. Sharma and the deceased Shivani Bhatnagar developed to such an extent that they
had decided to get married after divorcing their respective spouses. Shivani
Bhatnagar gave birth to a male child in October, 1998 and she asked her sister Sevanti
(PW26) to inform R. K. Sharma about the birth of a baby boy. However, by that time,
the appellant R. K. Sharma was apparently no longer interested in Shivani Bhatnagar.
This, allegedly, irked Shivani Bhatnagar and she allegedly threatened to ruin the life
and career of R. K. Sharma by completely exposing him. Because of this, the
appellant R. K. Sharma is alleged to have made up his mind to eliminate Shivani
Bhatnagar and, therefore, entered into a conspiracy with the co-accused to have her
killed.
19. It is through the call details of the deceased, appellant R. K. Sharma, Rakesh
Bhatnagar and the co-accused that, according to the prosecution, they were able to
unravel the conspiracy behind the murder of Shivani Bhatnagar. It is the case of the
prosecution that the accused Shri Bhagwan played a key role in the conspiracy
resulting in the murder of Shivani Bhatnagar. The cell phone No. 9811008825, whichCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 11 of 84
is alleged to have belonged to Shri Bhagwan, was also regarded as one of the most
important pieces of evidence by the trial court. We shall deal with this in greater
detail below. For the present, it is sufficient to note that as per the prosecution, Shri
Bhagwan was well known to the appellant R. K. Sharma as Shri Bhagwan’s father
Onkar Sharma, a retired Haryana police officer, had worked under the appellant R. K.
Sharma and that even after his retirement, the said Onkar Sharma continued to be in
regular touch with R. K. Sharma. He continued to meet R. K. Sharma during 1997-
1998, when R. K. Sharma was in Delhi and was posted as an Officer on Special Duty
in the Prime Minister’s Office.
20. Another accused Ved Prakash Sharma was also connected to Shri Bhagwan
inasmuch as Shri Bhagwan’s wife is Ved Prakash’s sister. Ved Prakash @ Kalu,
another accused, is the nephew of Shri Bhagwan being his sister’s son. It is the case
of the prosecution that both Ved Prakash Sharma and Ved Prakash @ Kalu were
introduced to the appellant R. K. Sharma by Shri Bhagwan.
21. Another accused Satya Prakash was also connected with Shri Bhagwan
inasmuch as he was a tenant of Shri Bhagwan at Gurgaon. It is alleged that Shri
Bhagwan, Satya Prakash, Ved Prakash Sharma and Ved Prakash @ Kalu were all in
the business of real estate and had operated from Gurgaon as well as Delhi.
22. Another connection between the accused Satya Prakash and the appellant R. K.
Sharma was that during 1996, it was alleged that Satya Prakash being the sarpanch of
village Utlodha, had invited the appellant R. K. Sharma, who was posted as DIG/
range, Rohtak to inaugurate a portion of the school at the said village. Even a plaque
was fixed on the wall of the school on which the names of both R. K. Sharma and
Satya Prakash are engraved. Photographs of the function were also collected by the
police during investigation. It was also alleged that Satya Prakash visited R. K.
Sharma’s residence at N-57, Greater Kailash-I, New Delhi, when he was posted as anCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 12 of 84
Officer on Special Duty in the Prime Minister’s Office during the year 1997-1998. It
is through Satya Prakash that accused Pradeep Sharma is connected with the rest of
the accused and with the appellant R. K. Sharma. Pradeep Sharma is Satya Prakash’s
nephew (sister’s son) and was also known to the other co-accused Ved Prakash
Sharma, Shri Bhagwan and Ved Prakash @ Kalu.
23. In January, 1999, the appellant R. K. Sharma was posted at Mumbai. He came
to Delhi on 12.01.1999, ostensibly, to meet the Joint Secretary, MOCA and CVC.
But, no such meeting actually took place. He stayed at Ashoka Hotel. On
13.01.1999, the co-accused Shri Bhagwan accompanied by Satya Prakash, Ved
Prakash Sharma and Ved Prakash @ Kalu met him at Ashoka Hotel, allegedly in Shri
Bhagwan’s white Esteem car bearing registration No. HR-26-G-9800. The appellant
R. K. Sharma contacted Shivani Bhatnagar over the phone and called her to Ashoka
Hotel. She came there along with her son. She was pointed out to the co-accused and
her photograph was also given by the appellant R. K. Sharma to Satya Prakash. After
Shivani Bhatnagar left Ashoka Hotel, R. K. Sharma went with all the accused in their
Esteem car to Navkunj Apartments to show them the location of her flat.
24. Thereafter, R. K. Sharma returned to Mumbai and attended a Vertical
Interaction Course for IPS at CIRT, Pune from 18.01.199 to 23.01.1999, possibly with
the intention to create an alibi. In order to monitor the events that were planned, he
borrowed a mobile phone No. 9822028128 from his friend Suresh Kukreja and it is
through this phone that R. K. Sharma had conversations with Shri Bhagwan.
25. Satya Prakash, as a part of the agreed conspiracy, contacted his nephew
Pradeep Sharma and required him to liquidate Shivani Bhatnagar and to meet him at
Sunder Nagar Market on 19.01.1999. On that date, Pradeep Sharma met Satya
Prakash, as arranged, and the other co-accused Shri Bhagwan was also present. SatyaCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 13 of 84
Prakash, once again, persuaded Pradeep Sharma to take up the task and allegedly
assured him that he would be reinstated in HUDA, where he had worked and that the
case pending against him in Chandigarh would be finished in case he did the job. It is
alleged that Pradeep Sharma demanded a sum of ` 3 lacs in addition to the above
mentioned favours and this was conveyed to Shri Bhagwan, who paid a sum of
` 50,000/- to Pradeep Sharma as advance. It is alleged that R. K. Sharma talked to
Shri Bhagwan on 19.01.1999 and gave his approval for the deal.
26. The job was to be done on 21.01.1999 in the afternoon. But the plan could not
materialize as Shivani Bhatnagar had left her house before the time fixed for the
execution of the plan. It is alleged that R. K. Sharma called co-accused Shri Bhagwan
on 22.01.1999 and they agreed that Shivani Bhatnagar would be killed on 23.01.1999
and necessary directions were given by Shri Bhagwan and Satya Prakash to Pradeep
Sharma. On 23.01.1999, Pradeep Sharma reached Patparganj, opposite Mother Dairy,
where he purchased one kilogram of besan ke laddu from a sweet shop and he along
with Satya Prakash went in the Esteem car (belonging to Shri Bhagwan) to the said
Navkunj Apartments. It is alleged that Pradeep Sharma was also carrying a piece of
electric wire concealed on his person. Ved Prakash Sharma and Ved Prakash @ Kalu
were also said to be present near Navkunj Apartments. They gave a green signal to
the accused Pradeep Sharma, who entered Navkunj Apartments by pretending to be
one Rajiv Bhatnagar from the Tribune, Chandigarh, who brought an invitation on
behalf of one Adhikari for Mr Rakesh Bhatnagar. Pradeep Sharma, after entering the
apartment and also having had a talk over the phone with Rakesh Bhatnagar,
completed the task of killing Shivani Bhatnagar and left Navkunj Apartments. On
their return journey, Pradeep Sharma informed Shri Bhagwan over the phone that the
work had been done and who, in turn, conveyed the message to R. K. Sharma in
Mumbai over the phone from the S. P. Office, Gurgaon. It is further alleged that onCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 14 of 84
24.01.1999, Shri Bhagwan, Satya Prakash and Ved Prakash Sharma reached Mumbai
and procured the contractual amount of ` 3 lacs from R. K. Sharma.
27. The prosecution, in order to establish its case against the accused, examined as
many as 209 witnesses. The defence also examined 15 witnesses.
Submissions of Sh. Sushil Kumar, Senior Advocate, on behalf of the appellant R.
K. Sharma
28. Mr Sushil Kumar, the learned senior counsel appearing on behalf of the
appellant R. K. Sharma submitted that initially this was a case of blind murder and
there was no progress in the investigation for a period of over two years and then, all
of a sudden, in June-July, 2002, the case was apparently solved. It was submitted that
initially R. K. Sharma had been thoroughly interrogated and had gone out of the zone
of being a suspect and then, all of a sudden, disclosure statements of the other coaccused were allegedly recorded and, thereafter, R. K. Sharma again became an
accused. It was suggested by the learned counsel that there was great media hype with
regard to this case and there were certain other influences which forced the
prosecution to implicate R. K. Sharma. In this connection, it was submitted that the
case was, first of all, assigned to PW 193 Inspector Sukhwinder Singh on 24.01.1999.
The Supervising Officer at that time was PW167 ACP P. P. Singh. PW193 Inspector
Sukhwinder Singh was the Investigating Officer between 24.01.1999 and April, 2000,
when the case file was handed over to Inspector Ranbir Singh along with the records.
Inspector Ranbir Singh was, however, not made a witness in the case. It was further
submitted that between the period April, 2000 and June, 2002, which was a duration
of about two years and two months, there was a complete blank in the investigation.
It was also submitted by the learned counsel that initially even Rakesh Bhatnagar, who
was the husband of the deceased Shivani Bhatnagar, was a suspect. However, despite
this fact, the call details of Rakesh Bhatnagar, although referred to by the prosecution,CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 15 of 84
were not placed before Court. As per PW193, Inspector Sukhwinder Singh, the
mobile phone records of Rakesh Bhatnagar and particularly the calls received and
made on 23.01.1999 were scrutinized by him. However, as aforesaid, the details were
not placed before Court.
29. The fact that Rakesh Bhatnagar was also one of the suspects has been admitted
by PW167 ACP P. P. Singh in the course of his cross-examination. As recorded in
page 933 of Volume 4, Rakesh Bhatnagar is stated to have remained a suspect till
February, 2000 while the case was under his supervision. This witness had also stated
that call details including that of R. K. Sharma were collected in 1999 itself and had
been scrutinized. The learned counsel also submitted that R. K. Sharma never had a
personal mobile phone.
30. In this backdrop, Mr Sushil Kumar submitted that R. K. Sharma had gone out
of the area of suspicion in 2000 inasmuch as he had undergone, though partially, a lie
detector test and his call details had been scrutinized and he had also been
interrogated. He submitted that between 2000 and 2002, no new material against R.
K. Sharma was unearthed. Yet, in July, 2002, he was made the prime suspect before
the media.
31. Mr Sushil Kumar further submitted that on 18.06.2002, PW203 Inspector Inder
Singh took charge of the investigation and he constructed the case on the basis of the
same material. It was the submission of Mr Sushil Kumar that the previous
investigating officers, Inspector Ranbir Singh and Inspector Ran Singh were not
brought as witnesses. Our attention was drawn to the testimony of PW203 Inspector
Inder Singh, wherein he stated that in the case file, which he received, there were
printouts of various mobile phones and landlines, which included the crucial number
9811008825, which allegedly belonged to the accused Shri Bhagwan. The learned
counsel submitted that it is on the basis of the old existing printouts that PW203,CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 16 of 84
Inspector Inder Singh proceeded to search for Shri Bhagwan and the other accused.
Allegedly, the first disclosure was that of Shri Bhagwan and was said to have been
recorded on 30.07.2002. Thereafter, the disclosure statement of Pradeep Sharma was
purportedly recorded on 03.08.2002 and then of Satya Prakash on 18.08.2002 and
finally of R. K. Sharma on 05.10.2002. Of course, each of the accused made
subsequent disclosure statements also.
32. The main propositions urged by Mr Sushil Kumar, the learned senior counsel
appearing on behalf of the appellant R. K. Sharma, were:-
(i) That the conviction by the trial court is based only on the purported
disclosure statements and call records particularly of phone number
9811008825, which is alleged to have belonged to Shri Bhagwan.
(ii) All the disclosure statements have been illegally admitted by the trial
court as evidence, in contravention of the provisions of Section 27 of
the Indian Evidence Act, 1872.
(iii) The call records are unreliable pieces of evidence inasmuch as –
(a) there is non-compliance with the provisions of Section 65B of
the Indian Evidence Act; and
(b) the contents are also inherently unreliable.
(iv) The factum of the purported motive being absent, as acknowledged
by the trial court, is an important factor particularly in a case of
circumstantial evidence such as the present one and cannot be
simply put aside or ignored as was done by the trial court.
33. In support of these propositions, Mr Sushil Kumar took us through the
impugned judgment in detail and also through the various call records and the
purported disclosure statements. The same shall be discussed later in this judgment.
The learned counsel also submitted that the trial court had placed reliance on Section
10 of the Indian Evidence Act to suggest that things said or done by a conspirator in
reference to a common design was a relevant fact particularly in reference to theirCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 17 of 84
common intention. He submitted that all the disclosure statements made by the
accused were post arrest and, therefore, Section 10 would not come into play at all and
consequently the conclusion arrived at by the trial court to the effect that admission
made by one accused, if inculpatory, can be relied upon against another co-accused,
was not correct. He reiterated that post arrest statements, such as the so-called
disclosure statements in the present case, were clearly inadmissible. In the backdrop
of Section 27 of the Indian Evidence Act, the learned senior counsel, referred to the
Supreme Court’s decision in the case of Aloke Nath Dutta v. State of West Bengal :
2007 (12) SCC 230 and submitted that the disclosures were clearly inadmissible but
have not only been accepted or exhibited by the trial court but have ultimately been
made the basis of conviction. The conclusion made in the impugned judgment that all
these disclosures made by the accused to the police are admissible under Section 27 of
the Indian Evidence Act was, according to the learned counsel for the appellant R. K.
Sharma, clearly erroneous. A reference was also made to Devesh Kumar v. State, a
decision of a Division Bench of this Court in Crl. A. 793/2004 decided on 10.02.2010.
Submissions of Mr Sidharth Luthra, senior advocate appearing on behalf of the
appellant Shri Bhagwan Sharma
34. Mr Sidharth Luthra, the learned senior counsel appearing on behalf of Shri
Bhagwan Sharma submitted that the case of the prosecution against his client is that
he knew R.K. Sharma from before and in view of his relationship with R.K. Sharma
he conspired with R.K. Sharma to kill Shivani Bhatnagar. According to Mr Luthra, the
case against Shri Bhagwan Sharma is based totally on circumstantial evidence and
there is not a single eye witness who testifies to his involvement in the commission of
the offence. He also submitted that the trial court has not even found any motive to
have been attributed to him.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 18 of 84
35. In connection with his client, Mr Luthra submitted that, inter alia, the following
crucial questions arose for consideration:-
(i) Whether there was any relationship between R. K. Sharma and Shri
Bhagwan?
(ii) Whether the mobile phone number 9811008825 belonged to and/ or
was used by Shri Bhagwan?
(iii) Whether Shri Bhagwan visited Ashoka Hotel on 13.01.1999 and had
a meeting with RK Sharma and others?
(iv) Whether the car bearing registration No. HR 26 G 9800 belonged to
and/ or was used by Shri Bhagwan?
His submissions on these questions are set out hereinbelow.
(i) Relationship between RK Sharma and Shri Bhagwan Sharma
36. According to Mr Luthra, the prosecution sought to establish the relationship
between R.K. Sharma and Shri Bhagwan Sharma by virtue of two circumstances. The
first circumstance being that Shri Bhagwan Sharma and R.K. Sharma knew each other
through Shri Bhagwan Sharma’s father, PW71 Onkar Sharma, a retired police officer,
who had been posted under R.K. Sharma while the latter was posted as SP in District
Rohtak. This, according to the Mr Luthra did not mean that they (Shri Bhagwan
Sharma and RK Sharma) were so well acquainted with each other that they could
hatch a conspiracy to kill someone. He further submitted that PW71Onkar Sharma, in
his examination in chief, clearly stated that he knew R.K. Sharma only in the capacity
of his superior officer. Mr Luthra submitted that PW 71 Onkar Sharma revealed in his
cross examination that R.K. Sharma had even passed strictures against him. In this
backdrop, it was submitted that there was no basis to conclude that they shared such a
close relationship that they could conspire together.
37. The second circumstance sought to be established on behalf of the prosecution
was that Shri Bhagwan Sharma was a property dealer and that he was investingCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 19 of 84
money on behalf of R.K. Sharma. It was submitted that in order to prove this
circumstance the prosecution examined PW 105 Mrs. Abha Singh and PW 106 Mr.
DK Singh both of whom admitted knowing RK Sharma but denied knowing Shri
Bhagwan Sharma. It was also submitted that while PW 16 Diwan Chand Sharma and
PW 17 Vishweshwar Dubey have stated that Shri Bhagwan Sharma was a property
dealer, neither of them have stated that any investment in property was made by Shri
Bhagwan Sharma on behalf of R.K. Sharma or that Shri Bhagwan Sharma purchased
property on behalf of R.K. Sharma. It was further submitted that PW127 Nawal Singh
and PW128 Pradeep were examined by the prosecution to establish that Shri
Bhagwan Sharma was a property dealer and that they had paid a sum of ` 10,00,000/-
to Shri Bhagwan Sharma in respect of a property transaction, however, neither of
these witnesses supported the case of the prosecution nor has the prosecution
brought on record any proof regarding payment of the said sum of ` 10,00,000/-.
38. Consequently, Mr Luthra submitted, the prosecution has not been able to
establish that Shri Bhagwan Sharma knew R.K. Sharma and, at any rate, knew him so
well that he could conspire with him (without any gain for himself) to kill someone.
(ii) Was Mobile Phone No. 9811008825 owned and/or used by Shri Bhagwan
Sharma?
39. Mr Luthra generally submitted that the trial court had seriously erred in relying
upon the records of various mobile numbers and landline numbers when the same
were not proved in accordance with law. Moreover, the prosecution had not produced
the corresponding records for the incoming calls of the various landline numbers
including those attributed to Shri Bhagwan Sharma, thereby depriving the defence of
an opportunity to test the veracity of the records especially when the same is, at best,
secondary evidence.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 20 of 84
40. It was submitted that the prosecution sought to establish that Shri Bhagwan
Sharma used SIM Card No. 9811008825 by inserting the same in a Nokia mobile
instrument having IMEI No.490520304282810 to talk to R.K. Sharma and other
convicts during the period November 1998 to 23-01-1999. On 23-01-1999 SIM card
No.9811008825 was allegedly destroyed and the mobile instrument having IMEI
No.490520304282810 was then allegedly used by Satya Prakash Sharma with SIM
card No. 9811048912 from 04-03-1999 to 05-07-1999 and from 05-07-1999 to 22-
09-1999 this mobile instrument was allegedly used by Pradeep Sharma and
occasionally by his friend PW111 Narendra Solanki and from 07-12-2001 to 20-07-
2002 the said mobile instrument is alleged to have been used by PW126 Hari Chand
in conjunction with SIM card No.9810025524.
41. In an attempt to prove the Shri Bhagwan Sharma’s ownership and use of SIM
Card No. 9811008825 and mobile handset having IMEI No.490520304282810, the
prosecution examined
1. PW18 Naveen Kumar (relative of Shri Bhagwan Sharma);
2. PW97 Rohit Dabar and PW107 Shailender Gaba (owners of shop
Nirmal Communications, Lajpat Nagar from where the said SIM card
and mobile instrument were allegedly purchased by Shri Bhagwan
Sharma through PW18 Naveen Kumar);
3. PW 126 Hari Chand from whom the mobile instrument was allegedly
seized;
4. PW135 Major AR Satish (retd) (to prove the CDRs of SIM Card
No.9811008825 and CDR of IMEI No. 490520304282810;
5. PW139 RK Singh (to prove the CDR of SIM card No. 9810025524
attributed to PW126 Hari Chand); and
6. PW187 Inspt. K.P. Singh and PW203 Inspt. Inder Singh, who were also
examined on this aspect.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 21 of 84
It was submitted that neither PW 18 Naveen Kumar nor PW97 Rohit Dabas nor
PW107 Shailender Gaba supported the case of the prosecution and no document of
purchase of the mobile instrument been produced by the prosecution.
42. It was also submitted that although CDR for Mobile No. 9811008825 Ex.PW
135/28 from 03-01-1999 to 23-01-1999 is available but no IMEI number is mentioned
on Ex.PWI35/28. The CDR for Mobile No. 9811008825 was requested by letter
dated 27-09-2002 Ex.PW135/26 and was delivered under cover of letter dated 27-09-
2002 Ex.PW135/27. However, there is nothing on record to show how the
prosecution came to know that the mobile instrument having IMEl
No.490520304282810 was being used with SIM card No.9811008825. Thus,
according to Mr Luthra, there is no evidence to connect SIM card No.9811008825
and mobile instrument having IMEl No.490520304282810. Moreover, after 23-01-
1999, no CDR of mobile No. 9811008825 is available on record. SIM card bearing
No. 9811008825 has not been produced in evidence and is stated to be destroyed,
proof of which fact is sought to be being derived from alleged disclosure statements
Ex PW 132/29 and Ex.PW132/30 of Shri Bhagwan Sharma and from Ex PW 180/4.
43. It is alleged that instrument having IMEl No.490520304282810 was used with
SIM No. 9811048912 for which the CDR is: Ex.PW 135/1 from 04-03-1999 to 24-
03-1999; Ex.PW135/2 from 01-04-1999 to 30-04-1999; Ex.PW135/3 from 01-05-
1999 to 30-05-1999; Ex.PW135/4 from 02-06-1999 to 30-06-1999; part of Ex.PW
135/5 from 01-07-1999 to 05-07-1999. But, it was submitted, neither SIM card No.
9811048912 has been produced nor any documents to prove its ownership from
manufacturer/telecom agency. PW 135 Major AR Satish is silent about the ownership
and registration of any number and PW 163 Mukesh Yadav has not supported the
prosecution on this.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 22 of 84
44. Furthermore, CDR of IMEl No.490520304282810 (Ex.PW135/1 to
Ex.PW135/25) is claimed to be taken out on 26-08-2002 but, on that date there was
no request to Hutch for CDR nor was this IMEl Number available then inasmuch as
the first letter seeking the call details of SIM number 9811008825 was written on
27.09.2002 Ex.PW135/26. It is submitted that the IMEl Number for mobile
No.9811008825 was not available with the Police till as late as 13-10-2002 as
PW203 Inder Singh admitted in his cross examination that the IMEI number of the
mobile was not supplied even after sending/ despatching Ex.PW203/24 dated 13-10-
2002.
45. While instrument having IMIE No. 490520304282810 is alleged to have been
used with SIM card bearing no.9811046572 from 05-07-1999 to 22-09-1999 as per
CDR Ex.PW135/5, it was submitted that PW111 Narender Singh has not supported
the prosecution case as to ownership/ use of the instrument by Pradeep Sharma.
Furthermore, no documents evidencing ownership/ use of mobile No.9811046572 by
Pradeep Sharma or anyone are on record.
46. Mr Luthra submitted that it is also noteworthy that CDR 26-08-2002 of IMEI
No.490520304282810 for the month of February 2000 reveals that the mobile
instrument was used with SIM card No.9811036174 but, no record of ownership of
mobile No. 9811036174 has been produced.
47. It was also submitted that instrument with IMEI No. 490520304282810 was
alleged to have been used with SIM card No. 9810025524. PW126 Hari Chand
claims to have obtained the mobile instrument having IMEI No. 490520304282810
from one Sonu who is not examined. Furthermore, PW 126 Hari Chand does not
affirm in his testimony that SIM Card No. 9810025524 belonged to him.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 23 of 84
48. It was submitted that there was nothing on record to link SIM card
No.9811008825 and mobile instrument having IMEI No.490520304282810 with Shri
Bhagwan Sharma as there was no documentary evidence to show ownership of the
said SIM card and mobile equipment and the witnesses examined did not support the
prosecution case on this aspect. In fact, according to Mr Luthra, the prosecution could
not even bring on record as to how they became aware of IMEI
No.490520304282810. Furthermore, neither the said SIM card nor mobile instrument
was produced.
(iii) Whether Shri Bhagwan visited Ashoka Hotel on 13.01.1999?
49. Mr Luthra submitted that it is the case of the prosecution that on 13-01-1999
R.K. Sharma called Shri Bhagwan Sharma and that Shri Bhagwan Sharma
accompanied by Satya Prakash, Ved Prakash @ Kalu and Ved Prakash Sharma went
to Ashoka Hotel to meet with RK Sharma in car no HR 26G 9800. It is further
alleged that, at Ashoka Hotel, RK Sharma pointed out Shivani Bhatnagar to the said
persons and, thereafter, accompanied them in car no HR 26G 9800 to Navkunj
Apartments.
50. It was submitted that the prosecution sought to prove this meeting by showing
that RK Sharma used mobile phone no. 98110088225 (attributed to Shri Bhagwan
Sharma ) to call his daughter Ms Pragati on number 9810020829, PW 108 Kunal
Lalani on number 9810067890 and Dr. J.K. Pasricha on telephone numbers 254040
and 255050. According to the learned counsel, the prosecution has neither examined
Ms Pragati nor proved that mobile number 9810020929 belongs to her. The
prosecution has also not examined Dr. J.K Pasricha. PW 108 Kunal Lalani has
deposed that he does not know RK Sharma and due to lapse of time he cannot say if
he received any call from RK Sharma. Hence, according to the learned counsel, the
above facts do not prove that Shri Bhagwan Sharma met with RK Sharma on 13-01-CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 24 of 84
1999 at Ashoka Hotel, New Delhi or that RK Sharma used mobile no. 9811008825
attributed to Shri Bhagwan Sharma to make calls to persons known to him.
51. It was contended that in order to prove that Shri Bhagwan Sharma came to
Ashoka Hotel in car no HR 26G 9800 on 13.01.1999, the prosecution relied upon a
parking receipt no. 3014 (Ex PW 60/2A) of Ashoka Hotel which only has the numbers
"9800" written on it. PW 60 Surender Singh who was working as Manager Vigilance
Security at the Ashoka Hotel proved the said receipt. It is the case of the prosecution
that the said parking receipt is proof of the fact that car No. HR 26G 9800 attributed
to Shri Bhagwan Sharma came to Ashoka Hotel on 13-01-1999 and, therefore, Shri
Bhagwan Sharma had also come to Ashoka Hotel on the said date. It was submitted
that PW60 Surender Singh is neither the author of the receipt nor has he identified the
car in question. He also states in his cross examination that he cannot say whether the
said receipt is that of a car or a two wheeler. Hence, according to the learned counsel,
there was no basis for the Trial Court to assume that Shri Bhagwan Sharma had come
to Ashoka Hotel on 13-01-1999 in car No. HR 26G 9800.
52. It was also contended that in order to prove the meeting of 13-01-1999 the
prosecution must also establish that Shivani Bhatnagar came to Ashoka Hotel on that
date. PW72 Dharam Singh and PW74 Manjeet Singh are the taxi drivers who
allegedly brought Shivani Bhatnagar to Ashoka Hotel in the second week of January
1999. However neither of the two witnesses supported the case of the prosecution.
As per the prosecution Shivani Bhatnagar met with RK Sharma at Ashok Hotel on 13-
01-1999 in the evening but later during trial the prosecution sought to show that
Shivani Bhatnagar came to the hotel in the afternoon. It was also pointed out by the
learned counsel that PW106 D.K. Singh in his examination in chief stated that he met
RK Sharma at 12:45 pm and was with him for 45 minutes. This, according to the
learned counsel, clearly proves the fallacy in the case of the prosecution and provesCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 25 of 84
that it was not possible for RK Sharma to have met with Shivani Bhatnagar as alleged
by the prosecution.
53. It was further submitted that no one from the Ashoka Hotel identified the car
and no witness testified that Shri Bhagwan Sharma was seen or was present at the
Ashoka Hotel on 13-01-1999 or at or near Navkunj Apartments on 13-01-1999.
According to the learned counsel, the circumstance that Shri Bhagwan Sharma
allegedly met with RK Sharma on 24.12.1998, 13.01.1999 and on 25.01.1999 had not
been put to Shri Bhagwan Sharma during his examination U/s. 313 Cr.P.C and,
therefore, the Trial Court could not have relied upon the same against Shri Bhagwan
Sharma.
(iv) Whether the car bearing registration No. HR 26 G 9800 belonged to and/
or was used by Shri Bhagwan?
54. It is the case of the prosecution that though the Maruti Esteem car bearing no.
HR 26G 9800 was not registered in the name of Shri Bhagwan Sharma but, it was
actually owned and used by him. Acording to the learned counsel the Trial Court also
arrived at this conclusion but, solely on the alleged submission of the learned Special
Prosecutor to the following effect:-
"That when a vehicle is sold through an agent, the practice in vogue is that
car dealer gets form 29, 30 signed from the intended seller alongwith
affidavit. The dealers sell such vehicle to the intended purchaser on the
basis of those documents filling his name on their own. Very often it is not
known to the seller as in whose name registration certificate of the said
vehicle will be transferred. Similalrly it is not necessary that buyer meets
seller face to face. Sometimes vehicles changes several hands, without any
change in registration certificate."CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 26 of 84
55. It was submitted that, contrary to the above statement, PW 65 Ram Singh,
Clerk SDM office proved the ownership of the Car and deposed that in 1998 the said
Car was purchased by PW 69 Dayanand Kataria (documents of ownership being Ex
Pw 65/2), who thereafter sold it to PW75 Maan Singh (documents of ownership being
Ex Pw 65/6 to Ex Pw 65/13), from whom the car was transferred to PW64 Ms.
Sabina Bhatia (documents of ownership being Ex Pw 64/3 to Ex Pw 64/6) and,
finally, to PW200 Venkateshwar Girish. It was contended that the entire premise of
the submission of the Ld. Special Public Prosecutor which has erroneously also been
accepted by the Trial Court is based on a solitary document being Ex PW 77/2A,
which is purported to be a carbon copy. To further buttress its hypothesis the
prosecution relied upon the opinion of PW132 Deepa Verma handwriting expert who
deposed that the signature appearing on Ex PW 77/2A is that of Shri Bhagwan
Sharma. However, according to the learned counsel for Shri Bhagwan Sharma, what
the Trial Court failed to appreciate was that PW77 Ravinder Shokeen from whom this
document is said to have been recovered, has expressly stated in his testimony before
the Trial Court that when Ex PW772A was seized from him by the police it was
blank. It was also submitted that all the other witnesses examined by the prosecution
being PW 94 Mahesh Kumar, PW 91 Krishan Kumar, PW 86 Mohan Kathuria, PW
116 Satbir Kataria and PW 92 Sanjay Singh have not supported the version of the
prosecution.
56. It was submitted that the prosecution has not been able to prove beyond
reasonable doubt that car No. HR 26G 9800 was owned and used by Shri Bhagwan
Sharma.
57. It was also contended that the investigating agency did not discover any facts
on account of the alleged disclosure statements of Shri Bhagwan Sharma and that the
disclosure statements themselves are actually false and have not been made by Shri
Bhagwan Sharma and even otherwise cannot be relied upon against him.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 27 of 84
Submissions of Mr Sarfaraz Hussain, counsel appearing on behalf of the
appellant Satya Prakash Sharma
58. Mr Sarfaraz Hussain, the learned counsel appearing on behalf of the appellant
Satya Prakash Sharma submitted that as per the prosecution, the link between Shri
Bhagwan and Satya Prakash Sharma is that Satya Prakash Sharma is said to be a
tenant of Shri Bhagwan and also a property dealer. Pradeep Sharma is alleged to be
Satya Prakash’s nephew (sister’s son). According to the learned counsel, all the
disclosure statements are illegal and cannot be relied upon as evidence. He also
submitted that no conspiracy has been established between Satya Prakash Sharma and
Shri Bhagwan or any of the other accused.
59. With regard to the relationship between Shri Bhagwan and Satya Prakash
Sharma, the learned counsel referred to the testimony of PW15 Head Constable
Dinesh Kumar, who stated that he was not aware of the occupation of Shri Bhagwan
and that he did not know the accused Satya Prakash Sharma. He further stated that
although his statement was recorded, he was made to sign blank papers and that he
had not stated that Satya Prakash Sharma was a tenant of Shri Bhagwan and was also
doing a job of a property dealer. He also denied having stated to the police that he
knew Satya Prakash Sharma.
60. The learned counsel then referred to the testimony of PW16 Diwan Chand
Sharma, who was an inspector in Delhi Police and also happened to be the brother-inlaw of Shri Bhagwan. PW16 Diwan Chand Sharma stated that he did not know Satya
Prakash Sharma and that Satya Prakash Sharma had no partnership with Shri
Bhagwan. Therefore, according to the learned counsel, there was no relationship
between Satya Prakash Sharma and Shri Bhagwan.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 28 of 84
61. Our attention was also drawn to the testimony of PW17 Visheshwar Dubey,
who was the security guard at Jalaan Farms and who had stated that Shri Bhagwan,
Satya Prakash Sharma and Ved Prakash @ Kalu used to come to Ved Prakash Sharma
and Ramesh Singhal once in 15-20 days. According to the learned counsel this part of
the testimony was not there in the Section 161 Cr. P.C statement and, therefore, PW17
Visheshwar Dubey had made this improvement and was, in all likelihood, a tutored
witness. Referring to PW18 Naveen Kumar, who was a relative of Shri Bhagwan, the
learned counsel drew our attention to his testimony wherein he has stated that he did
not know Satya Prakash and also did not know whether Satya Prakash and Shri
Bhagwan were friends.
62. The learned counsel submitted that PW43 Sajjan Pal Kataria, who was a Block
Development Officer, Jhajjar, Haryana, was a witness for the prosecution to prove the
relationship between Satya Prakash and R. K. Sharma. With reference to the
testimony of this witness, it was pointed out that Satya Prakash was the Sarpanch of
village Utlodha during December, 1994 to February, 2000 and that on 13.01.1996,the
inauguration of a school room was got done by R. K. Sharma and that too by a
unanimous decision of the Gram Panchayat in 1996. The learned counsel submitted
that the murder took place in 1999 and there is no evidence of any meeting between
Satya Prakash and R. K. Sharma during this period. With reference to the alleged
meeting of Satya Prakash and other accused with R. K. Sharma at Ashoka Hotel on
13.01.1999, the learned counsel stated that on that date, Satya Prakash was in the
village as he had presided over a Gram Panchayat meeting as would be evident from
Exhibit PW43/DA and Exhibit PW43/DB.
63. The learned counsel also referred to the testimony of PW89 Inder Prakash, who
stated that Satya Prakash remained in the village during the entire period of January,
1999. This statement was made by him in examination-in-chief. When the publicCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 29 of 84
prosecutor requested to cross-examine the witness, the same was rejected as the Court
had observed that he had not resiled from his Section 161 Cr. P.C statement. PW89
further stated in cross-examination that a sports function was held in the village
between 18.01.999 to 24.01.1999 and Satya Prakash had remained there. The prize
distribution function was held on 24.01.1999, which was followed by the Republic
Day functions on 25.01.1999 and 26.01.1999. Thus, the learned counsel appearing on
behalf of Satya Prakash submitted that the latter was not in Delhi either on 13.01.1999
when the alleged meeting with R. K. Sharma took place at Ashoka Hotel nor on
23.01.1999, when Shivani Bhatnagar was murdered.
64. The learned counsel further submitted with reference to PW140 Om Prakash
(who was a tenant of Shri Bhagwan’s father Onkar Sharma) that he stated that he did
not know Satya Prakash and that he did not state to the police that Satya Prakash was
working with Shri Bhagwan or was his tenant. The learned counsel also submitted
that PW163 Mahesh Yadav also stated that he did not know Satya Prakash and that he
had not stated to the police that mobile phone number 9811048912 was used by Satya
Prakash. The learned counsel also submitted that no calls had been made to Satya
Prakash while calls to the others have been mentioned in detail. Finally, he submitted
that the alleged signature in the register at Hotel Milan was not compared with the
specimen signature of Satya Prakash and, therefore, the same cannot be linked with
Satya Prakash. He also submitted that the alleged recovery of ` 3 lacs from Satya
Prakash was not established.
Submissions of Mr D. B. Goswami appearing on behalf of the appellant Pradeep
Sharma
65. Mr D. B. Goswami, the learned counsel appearing on behalf of the appellant
Pradeep Sharma made submissions on five aspects:-
(i) Motive;CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 30 of 84
(ii) Conspiracy;
(iii) Call details in respect of landline No. 5018092 at village and post office
Dichaon Kalan, District Nazafgarh, Delhi;
(iv) Chance prints allegedly lifted from the scene of murder from the
polythene covering of the sweetmeat box and the tea cup; and
(v) Handwriting in the register of the entry gate of Navkunj Apartments.
Motive & Conspiracy
66. With regard to the alleged motive, Mr Goswami drew our attention to
paragraph 105 to 107 of the impugned judgment to contend that even before the trial
court, the prosecution had failed to establish the alleged motive behind the killing of
Shivani Bhatnagar. He submitted that there was no iota of evidence that a sum of ` 3
lacs or any other sum was paid to Pradeep Sharma for the alleged job. He, however,
submitted that despite the fact that the trial court observed that no motive had been
established on record, the trial court ignored this important circumstance by taking the
view that motive is not necessary. He submitted that while motive may not be a vital
circumstance in cases of direct evidence, where there were eye witnesses of the
occurrence, but in a case of circumstantial evidence, the establishment of a motive
attains great significance. Therefore, in the present case, which is one of
circumstantial evidence, the absence of a motive would seriously dent the prosecution
case.
67. Mr Goswami further submitted that the appellant Pradeep Sharma had no links
with R. K. Sharma, direct or indirect, and was admittedly not known to R. K. Sharma.
He was, even as per the prosecution case, not initially a part of the conspiracy. Thus,
according to Mr Goswami, why would Pradeep Sharma take the risk of killing Shivani
Bhatnagar without any compensation? He referred to the decision of the Supreme
Court in the case of Omwati & Ors. v. Mahendra Singh & Ors: (1998) 9 SCC 81,
wherein it was observed in paragraph 10 that when the prosecution puts forth aCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 31 of 84
specific case as to motive and fails to prove it, it is a very important circumstance.
Consequently, it was submitted by Mr Goswami that the failure on the part of the
prosecution to prove the specific case of motive, particularly with regard to Pradeep
Sharma, is a very important circumstance which ought not to have been overlooked or
brushed aside by the trial court.
Call details
68. With regard to the call details, Mr Goswami submitted that the landline number
5018092, which was in the name of Ram Phal Sharma at village Dichaon Kalan, had
no STD facility. This has been stated by PW176 Suresh Kumar Kathuria from MTNL
in the course of his cross-examination. The learned counsel further submitted that
Pradeep Sharma did not reside in village Dichaon Kalan nor was he related to the said
Ram Phal Sharma. In fact, it was suggested by the learned counsel that Ram Phal
Sharma ought to have been called to the witness box by the prosecution, but that has
not been done and, therefore, the said telephone number cannot be linked with
Pradeep Sharma. It was definitely not Pradeep Sharma’s phone number. Thus,
according to Mr Goswami, there is no evidence of any phone calls between Pradeep
Sharma and the other accused.
Chance Prints
69. With regard to the chance prints lifted on 23.01.1999 from the glass tumbler
(Q1), the polythene covering of the sweet box (Q2, Q3, Q4, Q5) and the tea cup (Q6),
Mr Goswami submitted that it is only the chance print Q3, which, as per the finger
print expert’s report Exhibit PW192/97 dated 08.08.2002, matched the supplied prints
S3, S4, S5 and S6 of Pradeep Sharma. He further submitted that the finger print
report Exhibit PW192/97 bears the date 08.08.2002 whereas Exhibit PW192/95 shows
that the finger print expert had conducted the examination on 21.08.2002. The same
was also signed by the Director, Finger Print Bureau, Delhi Police, Delhi onCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 32 of 84
26.08.2002. Thus, according to Mr Goswami, the finger print report itself is of a
doubtful nature.
70. He further submitted that the chance print Q3, which was allegedly lifted on
23.01.1999 was, in fact, not taken from the polythene covering of the sweet box. He
made this inference on the basis of the fact that the finger prints of the owners of the
sweet shop were taken but they were not compared with the chance prints lifted from
the polythene covering of the sweet box. Instead, they were compared with the chance
prints Q1 and Q3 lifted on 25.01.1999 from the perfume bottle and lipstick, with
which the said owners had, admittedly, no connection. Mr Goswami submitted that if
the finger prints of the owners of the sweet shop were also compared with the chance
prints taken from the polythene covering of the sweet box and if a match was found,
then it would have been conclusive proof that the sweet box was taken from the said
sweet shop. On the other hand, if the prints did not match, then an inference could be
drawn that the sweet box was not purchased from the said shop. And, it is in order to
avoid this inference that the chance prints taken from the polythene cover of the sweet
box were not compared with the finger print samples from the owners of the sweet
shop. Thus, according to Mr Goswami, it is apparent that the chance print Q3 taken
on 23.01.1999 was not taken from the polythene cover of the sweet box.
Entry Register
71. Referring to the entry register Exhibit PW61/1, Mr Goswami submitted that the
same was not genuine. He submitted that the entry at page 47 of the register showed
that a person by the name of Rajiv Bhatnagar had entered the premises at 2:50 pm and
had left at 3:10 pm. The entry also indicates that the said person was to visit flat No.
B-42 and that the purpose of the visit was to extend an invitation. The address of
Rajiv Bhatnagar, which was supplied at the time of making the entry, was house No.
311, Tribune Colony, Chandigarh. Mr Goswami submitted that the person, who had
given his name as Rajiv Bhatnagar, entered the premises at 2:50 pm and exitedCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 33 of 84
therefrom at 3:10 pm, as per the entry register. However, as per the ruqqa and FIR,
the murder of Shivani Bhatnagar is said to have taken place between 3:30 pm and 5
pm on 23.01.1999.
72. Moreover, Mr Goswami submitted that if the entry in the register was a
genuine one, then this was the very first thing which ought to have been investigated.
In other words, the investigating officer should have immediately verified as to who
Rajiv Bhatnagar was and whether he resided at house No. 311, Tribune Colony,
Chandigarh. It has later transpired that although house No. 311, Tribune Colony,
Chandigarh is an actual address, no person by the name of Rajiv Bhatnagar resided
therein. But, the important point, according to Mr Goswami, is that the police went to
Chandigarh to verify this fact for the first time on 03.10.2002, that is, after over two
and a half years of the incident. This also, according to Mr Goswami, casts doubts on
the existence of the entry in the register at the time the incident took place.
73. He further submitted that as per the entry register, another person by the name
of Wasaluddin had made an entry at 3:45 pm and he exited at 4 pm. The purpose of
the entry was also to visit B-42 and the purpose was indicated to be dry cleaning.
Mr Goswami submitted that the said Wasaluddin had not been produced as a witness
by the prosecution, when he would have been crucial insofar as the appellant Pradeep
Sharma is concerned. He submitted that if Wasaluddin had seen Shivani Bhatnagar
alive between 3:45 and 4 pm, then obviously the case of the prosecution against
Pradeep Sharma would fall to the ground.
74. Mr Goswami further submitted that PW87 Hira Lal was the security guard on
the date of the incident at Navkunj Apartments. Yet, PW87 Hira Lal was not asked to
identify Pradeep Sharma and in fact, no test identification parade was conducted
insofar as Pradeep Sharma was concerned. As per the testimony of PW87 Hira Lal,
on the date of the incident, a function was being held at Navkunj Apartments byCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 34 of 84
Mr Akshat Jain and many persons had entered the complex without making any entry.
Thus, according to Mr Goswami, anyone of those persons could have been the
assailant insofar as Shivani Bhatnagar was concerned. Mr Goswami also pointed out
that as per PW167 ACP P. P. Singh, the visitors’ register was seized on 26.01.1999.
However, there is no date in the seizure memo Exhibit PW79/1. The seizure memo
also does not refer to the dates of the entries in the register. Mr Goswami also
submitted that from the testimony of PW167 ACP P. P. Singh, it is clear that he had
not looked for the visitors’ register on 24.01.199 and did not remember if he had
asked for the register on that date. The said witness did not make any enquiry about
Abhijeet Kumar because he was the brother of the deceased. The statement of
Wasaluddin was also not recorded nor was any attempt made to interrogate any person
by the name of Rajiv Bhatnagar. The inference that was sought to be drawn by the
learned counsel from these statements was that as nobody tried to locate and/ or
interrogate the person by the name of Rajiv Bhatnagar, whose name was purportedly
entered in the register on 23.01.1999 to gain entry to Shivani Bhatnagar’s flat, there
was no such entry in the register and that is the reason why nobody sought to trace out
and/ or interrogate a person by the name of Rajiv Bhatnagar. In any event,
Mr Goswami submitted that the entry register was shrouded in doubt and, therefore,
could not be relied upon to implicate Pradeep Sharma.
75. Mr Goswami referred to the post mortem report and stated that it was also
interesting to note that asphyxia occurred first, that is, prior to the injuries 1 and 4 and
that there was an interval of 3 to 6 minutes between asphyxia and the injuries 1 and 4.
76. With regard to calls having been made from the landline number 5011013,
which was located at the ET&T Computer Centre, the learned counsel submitted that
although six calls were made at the ET&T Computer Centre, they cannot be connected
with Pradeep Sharma. First of all, the purported admission form (Mark PW59/1) of
Pradeep Sharma at the time of seeking admission at the ET&T Computer Centre, hasCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 35 of 84
not been established to be that of Pradeep Sharma and secondly there is no evidence
that Pradeep Sharma was, in fact, undergoing a course at the ET&T Computer Centre.
He further submitted that, in any event, the questions that were put to Pradeep Sharma
at the time of recording his statement under Section 313 Cr. P.C were not correctly
framed. The question put was that six calls had been made at the ET&T Computer
Centre, whereas the question ought to have been that the calls were received by
Pradeep Sharma at the said centre and there were no questions put to Pradeep Sharma
with regard to whether he had made the said calls. In respect of the landline number
50180 92 installed in the name of Ram Phal Sharma at village Dichaon Kalan, the
learned counsel submitted that Pradeep Sharma cannot be connected with the same.
This is so because Pradeep Sharma did not reside in village Dichaon Kalan and he is
not related to Ram Phal Sharma in any way. The said Ram Phal Sharma had not been
called to the witness box. It was, therefore, contended by Mr Goswami that there is
no evidence of any phone calls between Pradeep Sharma and the others.
Sweet Box
77. With regard to the box of sweets, which allegedly was carried by Pradeep
Sharma to B-42, Navkunj Apartments and handed over to Shivani Bhatnagar, Mr
Goswami submitted that the sweet box did not contain the name of the shop printed on
it. In this backdrop, he submitted that when the name of the shop was not printed on
the box and the disclosure statements were recorded in 2002, then how did the police
reach PW80, Smt. Indu Bala, who was the owner of the shop at A-44, Pandav Nagar,
Delhi and take her finger prints as also that of her husband in 2001? In any event, Mr
Goswami submitted that from the testimony of PW80, Smt. Indu Bala, it is clear that
she cannot identify the person who purchased the said sweet box. In fact, according to
Mr Goswami, even the sweet box was not shown to PW80 Smt. Indu Bala and thus
that has not been identified as having originated from her shop.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 36 of 84
Wire
78. Mr Goswami, the learned counsel appearing on behalf of Pradeep Sharma,
submitted that even the yellow wire, which is supposed to have been used by the killer
for strangulating Shivani Bhatnagar, has its own story to tell. He submitted that at the
time of post mortem examination, as indicated in Exhibit PW3/1, the wire shown to
the Board, which conducted the post mortem, was a yellow wire of 49 inches length
and it is, therefore, opined that strangulation is possible by the said wire shown to
them. PW3 Dr. R. K. Sharma, who was the head of the Medical Board which
conducted the post mortem examination, was recalled for re-examination and a
question was put to him as to whether he mentioned the length of the crime wire
shown to him by the Investigating Officer. In answer, he stated that he had already
mentioned it in his evidence previously recorded before the court. The court observed
that as per the evidence of the said witness recorded on 25.03.2003, the length of the
crime wire was given as 49 cms. Mr Goswami also contended that as per Exhibit
PW66/3, which is the purported recovery memo in respect of the wire, no
measurement of the wire is mentioned therein. Therefore, it was contended by Mr
Goswami that the alleged electric wire which was allegedly used by the killer to
strangulate Shivani Bhatnagar is also not free from doubt. Finally, Mr Goswami also
submitted that the purported disclosure statements made by Pradeep Sharma are
inadmissible in evidence as nothing was pointed out by Pradeep Sharma and no
recovery was made pursuant to the purported disclosure statements. Consequently,
Mr Goswami submitted that the prosecution has failed to establish beyond reasonable
doubt that it was Pradeep Sharma who was the killer. The learned counsel had placed
reliance on the following decisions:-
(i) Bhagirath v. State of M. P. : (1976) 1 SCC 20;
(ii) Rajendran v. State of Tamil Nadu: 1997Crl.L.J.4344 (Mad)(DB);
(iii) State of Madhya Pradesh v. Sitaram Rajput: 1978 Cr. L. J. 1220;
(iv) Fakhruddin v. State of Madhya Pradesh: 1967 Crl. L. J. 1197.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 37 of 84
Submissions of Mr Pawan Sharma on behalf of the State
79. Mr Pawan Sharma appearing on behalf of the State retraced the sequence of
events of 23.01.1999. He submitted that on that date, a phone call was made from the
mobile phone number 9811008825 to 5018092, which was installed at house No. 201,
Roshan Garden, Najafgarh, Delhi. The duration of the call was 55 seconds and the
time it was made was 11:55 am. Another call was made from mobile phone number
9811008825 to Shivani Bhatnagar’s landline 2726729 at 1:17 pm and the duration of
the call was only 9 seconds. Then a call was made from 5018092 to the mobile phone
number 9811008825 at 1:35 pm and the duration of which was 121 seconds.
80. At about 2:50 pm, one person came to Navkunj Apartments, entered his name
in the visitors’ register as Rajiv Bhatnagar and gave the purpose of his visit as
delivering an invitation. Thereafter, the first call made to the police was at 6:13 pm by
one Parul, an employee of Times of India from the phone number 3318543 and the
dialed number was 100. At 6:20 pm, a call was given by the PCR to Police Station
Mandawali and this was recorded in the form of DD No. 13-A (Exhibit PW9/A). At
6:30 pm, a call was received at the PCR number 100 from Shivani Bhatnagar’s
husband Rakesh Bhatnagar from their residence’s line. The information was recorded
as Exhibit PW154/1. Upon receiving the said information, Sub-Inspector Radhey
Shyam and SHO Satya Pal reached the spot (i.e. B-42, Navkunj Apartments) between
6:30 and 6:35 pm. Thereafter, Constable Rajesh Kumar was called to lift the finger
prints. 10 chance prints were lifted from the scene of the crime on 23.01.1999 itself:-
(i) Q1 and Q9 – from the glass tumbler;
(ii) Q2, Q3, Q4 and Q5 – from the polythene covering the sweet box;
(iii) Q6 and Q10 – from the tea cup; and
(iv) Q7 and Q8 – from the refrigerator.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 38 of 84
At this juncture, it may also be mentioned that three chance prints were lifted
subsequently on 25.01.999. They were:-
(i) Q1 and Q2 – from the perfume bottle; and
(ii) Q3 – from the lipstick.
81. Going back to the events of 23.01.1999, Mr Pawan Sharma pointed out that the
statement of Rakesh Bhatnagar was recorded at 11:10 pm and the FIR 21/1999 was
registered at 11:25 pm at Police Station Mandawali under Section 302 IPC. On
24.01.1999, the investigation was transferred to the Crime Branch and Inspector
Sukhwinder Singh took over the same. On 25.01.1999, a towel, curtain and vest
(baniyan) were seized from Navkunj Apartments. Between 25.01.1999 and
26.04.2000, the investigation remained with Inspector Sukhwinder Singh, when he
handed over the investigation to Inspector Ranbir Singh, who, in turn, after some time,
handed over the investigation to Inspector Ran Singh.
82. Ultimately, on 18.06.2002, Inspector Inder Singh took over the investigation.
In response to Mr Shushil Kumar’s submission that nothing had been done prior to
18.06.2002, Mr Pawan Sharma submitted that, on the contrary, prior to 18.06.2002
several steps had been taken. The call details of mobile phone number 9811008825
had been obtained. Similarly, the call details of the landline of Shivani Bhatnagar’s
flat (2726729) at Navkunj Apartments as also the call details of the landline at Shivani
Bhatnagar’s earlier residence at Sahyog Apartments (2251959) were also obtained. At
this juncture, it may be pointed out that Shivani Bhatnagar resided at Sahyog
Apartments between 17.12.1997 and September, 1998. The call details of phone
numbers 3630252, 2029935 and 2024142, which were the landline numbers of the
office and residence of R. K. Sharma at Mumbai, were also taken.
83. Mr Pawan Sharma also pointed out that on 31.05.1999 and 02.06.1999, R. K.
Sharma had been asked to join the polygraph test. As per Exhibit PW206/1, it wasCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 39 of 84
clear that on that date, no meaningful inference could be drawn from the answers
given by R. K. Sharma and, therefore, re-examination was suggested. A second report
Exhibit PW206/3 in respect of the test dated 12.07.1999 indicated that R. K. Sharma’s
respiration was erratic and the test could not be conducted and that he be brought after
he was certified as being medically fit. The third test report Exhibit PW206/5 dated
24.12.1999 indicates that R. K. Shrma did not attend and, therefore, insofar as the
conduct of the polygraph test was concerned, the same stood closed.
84. Mr Pawan Sharma submitted that the list of phone numbers given below were,
however, not investigated till 18.06.2002:-
(i) 332266 – landline at Shri Bhagwan’s house;
(ii) 301166 – landline at Shri Bhagwan’s brother’s house;
(iii) 330292 – landline at Ved Prakash Sharma’s house; and
(iv) 306611 – landline in Smt. Raj Bala’s name, who resided in the
same gali as Shri Bhagwan.
85. Mr Pawan Sharma further submitted that prior to 18.06.2002, finger prints of
several suspects and other persons were also taken and compared with the chance
prints lifted on 23.01.1999 and 25.01.1999. He submitted that as per Exhibit
PW192/80, which is the report dated 24.02.1999, of the finger print expert, 31
persons’ finger prints were compared. It was found that Q1 of 23.01.1999 (on the
glass tumbler) matched Rakesh Bhatnagar’s finger prints. There was nothing unusual
about this because Rakesh Bhatnagar was Shivani Bhatnagar’s husband and they were
residing together. Q2 of 25.1.1999 (from the perfume bottle) matched with Ms
Shevanti’s finger prints. Again, there was nothing unusual about this inasmuch as Ms
Shevanti was Shivani Bhatnagar’s sister. The chance prints Q3, Q4, Q5 and Q6 of
23.01.1999 and the chance prints Q1 and Q3 of 25.01.1999 did not tally with the
finger prints of any of the persons whose finger prints were taken and compared.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 40 of 84
With regard to the chance prints Q2, Q7, Q8, Q9 and Q10 of 23.01.1999, the report
Exhibit PW192/80 indicated that they were unfit for comparison.
86. There is another report Exhibit PW192/82 dated 21.04.1999 which also
indicates that the chance prints did not tally with the finger prints of three suspects
which were sent subsequently. Similarly, there are reports Exhibit PW192/82 dated
12.01.2000 and Exhibit PW192/88 dated 27.07.2000 indicating that the chance prints
did not tally with the finger prints of 2 and 52 other suspects/ persons, respectively.
87. Mr Pawan Sharma further submitted that the recovery of articles on
23.01.1999, as per Exhibit PW145/3 included the box of sweets (besan ke ladu) and
the said articles were deposited in the malkhana on 24.01.1999. Apart from this,
Rakesh Bhatnagar and other relatives were thoroughly interrogated and were even put
to polygraph test but nothing incriminating was found against them.
88. Coming back to the events after 18.06.2002, when the investigation was taken
over by Inspector Inder Singh, Mr Pawan Sharma submitted that the said Inspector
Inder Singh was also the Investigating Officer of another murder case known as the
Gola murder case. In that case, Inspector Inder Singh had received secret information
that one Pradeep Sharma may be in a position to give some clues about Shivani
Bhatnagar’s murder case. Mr Pawan Sharma submitted that on 23.07.2002, Shri
Bhagwan was produced before the investigating officer and he was interrogated about
the mobile phone number 9811008825, but as he had concealed his answers and
nothing material was elicited from him at that point of time, Shri Bhagwan was
allowed to go home. He was, however, arrested on 30.07.2002 and he made his
disclosure statement (Exhibit PW132/29) on that date and revealed the phone calls
made to R. K. Sharma. The second disclosure statement of Shri Bhagwan was made
on 04.08.2002 (Exhibit PW132/30). Shri Bhagwan also pointed out the STD booths
from which the calls were made on the date of the incident. The pointing out memoCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 41 of 84
was Exhibit PW103/2. Exhibit PW60/1 was the production memo in respect of the
counterfoil of car parking at Ashoka Hotel on 13.01.1999. The same had bore the
number 9800. Exhibit PW132/32 is the report of the Forensic Science Laboratory
which indicates that the signature of Shri Bhagwan tallied with the signature at the
delivery receipt of car bearing registration number HR 26 G 9800. According to Mr
Pawan Sharma, this clearly implied that there was a meeting held on 13.01.1999 at
Ashoka Hotel in which Shri Bhagwan participated.
Relationship between R. K. Sharma and Shivani Bhatnagar
89. Mr Pawan Sharma made submissions with regard to the relationship between
R. K. Sharma and Shivani Bhatnagar. In this connection, he, first of all, submitted
that R. K. Sharma’s official mobile number was 9810003040 and Shivani Bhatnagar’s
landline number at Sahyog Apartments was 2251959. Exhibit PW139/1 gives the call
details of 9810003040. The details revealed that between these two numbers there
were two calls each on 17.12.1997, 18.12.1997, 19.12.1997 and 22.12.1997. On
20.12.1997, there were, however, five calls. Referring to the call details further, Mr
Pawan Sharma submitted that during the period December, 1997 to May, 1998, there
were about 68 calls between these two numbers which clearly suggested that R. K.
Sharma and Shivani Bhatnagar were known to each other and were talking to each
other on more or less a daily basis. He further submitted that even when Shivani
Bhatnagar went to London, the calls between her and R. K. Sharma continued.
90. Mr Pawan Sharma then drew our attention to the testimony of PW83
Mrs. Saijal Shah, who attended the course in London with Shivani Bhatnagar and
shared an apartment with her. He submitted that Mrs. Saijal Shah stated that Shivani
Bhatnagar used to receive phone calls from R. K. Sharma every day. The witness
further stated that Shivani Bhatnagar was in love with him and was having an affair
with him and that she was also pregnant. Mrs Saijal Shah further stated that Shivani
Bhatnagar and R. K. Sharma used to have hour long phone conversations and that R.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 42 of 84
K. Sharma had started ignoring her, as a result of which Shivani Bhatnagar was upset.
From the above deposition, Mr Pawan Sharma contended, that the prosecution has
been able to establish that there was not only a friendship between R. K. Sharma and
Shivani Bhatnagar but that the friendship had developed into a full-blown love affair.
91. Mr Pawan Sharma stated that Shivani Bhatnagar gave birth to a child (boy) on
19.10.1998. As there was somewhat of a fall-out between R. K. Sharma and Shivani
Bhatnagar, the number of calls between the two declined significantly. At the same
time, around October, 1998 onwards, the number of calls between R. K. Sharma and
the other co-accused increased to a great degree right up to the date of the incident,
when the calls between R. K. Sharma and the other co-accused stopped suddenly.
Thus, according to Mr Pawan Sharma, the prosecution has been able to clearly
establish that the relationship between R. K. Sharma and Shivani Bhatnagar developed
from friendship to intimacy and ultimately resulted in their falling out. At that point
of time, the calls between R. K. Sharma and the other co-accused and particularly Shri
Bhagwan increased and ultimately came to a stop on the death of Shivani Bhatnagar.
92. Mr Pawan Sharma referred to Exhibit PW135/28, which are the purported call
details of mobile phone number 9811008825, which was allegedly owned/ used by
Shri Bhagwan. Referring to the call details and particularly to the call IDs, Mr Pawan
Sharma stated that on 13.01.1999, the movement of Shri Bhagwan can be traced out.
He submitted that Shri Bhagwan left Gurgaon and was at Ashoka Hotel at around 12
noon. Thereafter, the mobile phone was used near Navkunj Apartments and finally at
Gurgaon. This sequence was gathered from the phone calls made/ received at
different points of time through the aforesaid mobile number 9811008825. At 9:51
am a call was registered at Gurgaon. At 11:45 am, the call record disclosed the
location to be at Sultapur. At 12:46 pm, the location was at Sarojini Nagar. It was
stated that shortly thereafter, the phone was handed over by Shri Bhagwan to SatyaCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 43 of 84
Prakash. At 1:22 pm and 1:25 pm, the location was at Teen Murti. At 1:26 pm, the
location was at Aurangzeb Road. At 1:38 pm, at Sarojini Nagar, at 2:13 pm at NHCI
Pragati Maidan, at 2:20 pm at Bhogal, at 2:28 pm at Sakarpur, at 2:30 pm at Preet
Vihar, at 2:53 pm at Shiva Opticals, at 3:23 pm at Shankar Bhavan, at 3:50 pm at
Jukaso Inn Sunder Nagar and at 5:25 pm at Yasin Plaza, Gurgaon. Thus, according to
Mr Pawan Sharma, the prosecution case with regard to the meeting at Ashoka Hotel
on 13.01.1999, stands fully corroborated by the call records of mobile phone number
9811008825. He submitted that the Maruti Esteem car bearing registration number
HR-26-G-9800 was brought by Shri Bhagwan. From Ashoka Hotel, after Shivani
Bhatnagar had left, on 13.01.1999, R. K. Shrma, Satya Prakash, Ved Prakash and Ved
Prakash @ Kalu boarded the said car. Shri Bhagwan did not go in the car and had
handed over his mobile phone to Satya Prakash. Thus, it is the location of the cells
from which various calls were made using the mobile phone number 9811008825 that
the prosecution has sought to piece together the movement of Shri Bhagwan from
Gurgaon to Ashoka Hotel at Delhi and thereafter of Satya Prakash along with R. K.
Sharma, Ved Prakash and Ved Prakash @ Kalu in the said car to Navkunj Apartments
and their return. Satya Prakash ultimately returned with the car and the mobile phone
to Gurgaon in the evening. According to Mr Pawan Sharma, the meeting on
13.01.999 was crucial inasmuch as R. K. Sharma had shown the victim (Shivani
Bhatnagar) to Shri Bhagwan, Satya Prakash, Ved Prakash and Ved Prakash @ Kalu at
Ashoka Hotel and had also taken them (except Shri Bhagwan) to Navkunj Apartments
to show the place of residence of Shivani Bhatnagar.
Car HR-26-G-9800
93. According to Mr Pawan Sharma, the Esteem car HR-26-G-9800 belonged to
Shri Bhagwan. Although he was not the recorded owner but it was throughout used
by him. He submitted that as per Exhibit PW77/4, which is the production-cumseizure memo in respect of the delivery receipt booklet of the said car, it is apparent
that the car was initially delivered to P. C. Bhatia from one Maan Singh ExhibitCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 44 of 84
PW77/3 is the delivery receipt in respect of the delivery of the car to Ravinder
Shokeen from Shri Bhagwan. The same has been signed by Shri Bhagwan and the
same was sent to the Forensic Science Laboratory for comparison with the
handwriting of Shri Bhagwan. The report Exhibit PW132/32 indicates that the
signature matches Shri Bhagwan’s handwriting specimen. Although the ownership of
the car was transferred from one Dayanand Kataria to Maan Singh, then to P. C.
Bhatia and then to one Venkateshwar Girish, the delivery receipts showed that the car
was with Shri Bhagwan. Thus, according to Mr Pawan Sharma the link between the
car bearing number HR-26-G-9800 and Shri Bhagwan stands established and this
further corroborates the prosecution version of the meeting which was held on
13.01.1999.
Call details of mobile number 9811008825
94. Mr Pawan Sharma, while making submissions with regard to the call details of
the mobile phone number 9811008825, which allegedly belonged to Shri Bhagwan,
submitted that several details and numbers have been blanked out from Exhibit
PW135/28 and there are several changes in the phone numbers but these have all been
done to give benefit to R. K. Sharma, who was a high ranking police officer. He even
suggested that perhaps the police officials could have colluded in doing so. But,
according to Mr Pawan Sharma, it does not enable us to detract from the truth that
Shri Bhagwan was making and receiving calls to and from R. K. Sharma on the said
mobile phone number 9811008825. Mr Pawan Sharma made detailed submissions
with regard to the various entries made in the call details of Exhibit PW135/28 which
shall be dealt with subsequently in this judgment. He, however, submitted that during
the crucial period, entries were tampered with, but this did not enable us to reject all
the other call details. He also submitted that R. K. Sharma has not denied having
made calls to mobile phone number 9811008825 but has also stated that he used to
talk to one Raju on this number. This can be discerned from the question and answer
number 135 in the Section 313 Cr. P.C statement made by R. K. Sharma, where he hasCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 45 of 84
denied knowing Shri Bhagwan but has admitted that he was talking to Raju on the
mobile phone number 9811008825, who was allegedly a sub-contractor doing repair
work in Gurgaon in January, 1999 in the house owned by his wife.
95. Mr Pawan Sharma also submitted that Shri Bhagwan had taken a false plea of
alibi and having failed in proving his case of alibi, the prosecution case stands firmly
established insofar as Shri Bhagwan is concerned.
Regarding R. K. Sharma
96. Mr Pawan Sharma submitted that PW4 Ravindra Jagan Nath Shinde,
Superintendent Manager, Vigilance in Mumbai and PW25 D. T. Sarode, Vigilance
Officer, MTNL, Mumbai, gave the call details of two landline numbers, namely,
3630252, which was installed at the residence of R. K. Sharma and 2029935, which
was installed at the office of R. K. Sharma. Exhibit PW25/1-4 is the call details.
According to Mr Pawan Sharma, there is no allegation of tampering insofar as these
call details are concerned. He submitted that the number of calls made to Shivani
Bhatnagar dropped through time and particularly after October, 1998. The last call
made by R. K. Sharma to Shivani Bhatnagar was on 05.01.1999 from the above
landlines. In the meanwhile, from October, 1998 onwards, there was an increase in
the number of calls to Gurgaon and particularly to Shri Bhagwan.
97. PW26 Sevanti, who is Shivani Bhatnagar’s sister, had stated that Shivani
Bhatnagar gave birth to a male child on 19.10.1998 and Shivani Bhatnagar had asked
her to call R. K. Sharma to inform him of the birth of the child. She conveyed the
message on the next day but, according to the said witness, R. K. Sharma sounded
indifferent.
98. Mr Pawan Sharma then drew our attention to the testimony of PW47
Mukundam Nair, who was P.A to R. K. Sharma when he was in Mumbai. The saidCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 46 of 84
witness had stated that when R. K. Sharma had gone for his course at Pune, he had
given his contact number to Mukundam Nair as 9822028128. According to Mr Pawan
Sharma, this number belonged to one Suresh Kukreja (PW51), who was a friend of R.
K. Sharma. Mr Pawan Sharma also referred to the testimony of PW54 Kulwant
Singh, who provided cars to officials of Air India. He submitted that this witness had
stated that a car was sent to R. K. Sharma on 13.01.1999 at room No. 611, Ashoka
Hotel, but R. K. Sharma had already checked out before the vehicle arrived.
According to Mr Pawan Sharma, this corroborates the prosecution version that on
13.01.1999, R. K. Sharma and some of the other co-accused left in the white Esteem
car bearing registration number HR-26-G-9800, allegedly belonging to Shri Bhagwan,
towards Navkunj Apartments. He also referred to the testimony of PW84 Surender
Singh, who was the General Manager, Vigilance, Air India, who stated that on
13.01.1999 R. K. Sharma was in Ashoka Hotel and had a meeting at 10 am. He also
stated that he went to meet him at 12 noon. R. K. Sharma opened the door but was in
a haste to leave the room. Another witness PW95 Avinash Chander, who was the
Senior Manager, Security, Air India, also testified to the presence of R. K. Sharma at
Ashoka Hotel on 13.01.1999. He stated that he had a meeting with regard to vigilance
with R. K. Sharma on that date between 11:15 to 11:30 am for about 15-20 minutes.
99. Mr Pawan Sharma then drew our attention to the testimony of PW124 Rai
Singh Mandiwal, who was the Superintendent of the District Jail, Gurgaon. PW124
stated that he knew R. K. Sharma and that R. K. Sharma had visited the District Jail,
Gurgaon on 18.07.2002. At that point of time, Ved Prakash Sharma was in jail. He
also stated that it was a jail inspection by R. K. Sharma as he was D.G. Prisons,
Haryana at that time.
100. Mr Pawan Sharma stated that DW9 Hari Om Sharma, who is stated to have
been residing at Rewari and looking after R. K. Sharma’s agricultural land, was
introduced by the defence to contend that he was the one who used to attend to calls inCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 47 of 84
Shri Bhagwan’s house and Kishori’s house. Mr Pawan Sharma stated that Hari Om
Sharma’s version is not believable and he asserted that the calls were actually made to
Shri Bhagwan at his residence by R. K. Sharma and not to Hari Om Sharma as
suggested by the said witness.
Regarding Satya Prakash
101. With respect to the appellant Satya Prakash, Mr Pawan Sharma stated that as
per the testimony of PW17 Visheshwar Dubey, Satya Prakash, Shri Bhagwan, Ved
Prakash @ Kalu and Ved Prakash Sharma were known to each other and used to meet
at Ved Prakash Sharma’s house every 15-20 days. Mr Pawan Sharma further
submitted that Satya Prakash’s story that he was not even in Delhi on 13.01.1999 and
that he was at village Utlodha cannot be believed. He submitted that although PW43
Sajjan Pal Kataria, the Block Development Officer, Jhajjar, Haryana had brought the
Panchayat register (copy whereof is Exhibit PW43/DA), which showed that there was
a meeting on 13.01.1999 of the Gram Panchayat, the signatures of Gobind Ram were
different from those at page 183, volume 15 and similarly Bishambher’s signatures
were also different from those at page 183, volume 15. Therefore, he cast doubts on
the veracity of the said register entry showing the panchayat meeting. Mr Pawan
Sharma, referring to the Mumbai visit of Satya Prakash and stay at Hotel Milan, drew
our attention to the testimony of PW125, Sheikh Zahid Aziz, who was the receptionist
at hotel Milan. He had produced the check-in register for the period 01.11.1997 to
10.03.1999 (Exhibit PW125/1) as also the general ledger (Exhibit PW125/2). The
entry shown is of one S. P. Singh. According to Mr Pawan Sharma this is a fictitious
entry and this was actually Satya Prakash. He then referred to the testimony of
PW129 Imran Sheikh, who stated that entry No. 3831 was in his hand and was in
respect of one S. P. Singh. He also stated that two adults had accompanied S. P.
Singh. However, he could not identify them. He also pointed out that calls were
made from Milan Hotel to Deepak, a taxi driver as also to R. K. Sharma. PW 146CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 48 of 84
Sayyad Abdul Sattar, who was an accountant at Hotel Milan, also referred to the calls
made from the hotel (Mark PW146/A-D). But, he stated that the information was not
available on the computer. He also stated that Exhibit PW125/2 was the original
ledger for the period 01.04.1998 to 25.10.1998 but the bills were not available.
According to Mr Pawan Sharma, PW179 Head Constable Harvinder Singh proved the
pointing out memo of R. K. Sharma’s residence at the instance of Satya Prakash.
PW187 Inspector K. P. Singh proved the recovery of a photo on 25.08.2002 of
Shivani Bhatnagar from the father-in-law of Satya Prakash. PW186 Sub-Inspector
Sajjan Singh is also a witness to the recovery of a photo of Shivani Bhatnagar from
the father-in-law of Satya Prakash from village Khan Pur.
Regarding Pradeep Sharma
102. Mr Pawan Sharma submitted that Pradeep Sharma was the person who actually
killed Shivani Bhatnagar. He submitted that Pradeep Sharma entered Navkunj
Apartments on 23.01.1999 at about 2:50 pm and he gave his name as Rajiv Bhatnagar
in the entry register maintained at Navkunj Apartments. PW87 Hira Lal, who was the
Chowkidar at Navkunj Apartments, was on duty on 23.01.1999 had confirmed that at
2:50 pm, one person had come and entered his name as Rajiv Bhatnagar and gave the
other details mentioned earlier. Mr Pawan Sharma submitted that Pradeep Sharma’s
relationship with Satya Prakash stands established as per the testimony of PW88
Naresh Chand. He also submitted that the connection between Pradeep Sharma and
the rest of the accused is clearly established by evidence on record as mentioned
above. He submitted that PW141 Constable Rajesh Kumar lifted chance prints from
the flat and the result of the examination conducted was that chance print Q3 lifted on
23.01.1999 matched with Pradeep Sharma’s given finger impressions S3, S4, S5 and
S6. Thus, according to Mr Pawan Sharma, Pradeep Sharma was clearly inside the flat
on 23.01.1999 as his finger print was found on the polythene covering of the sweetCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 49 of 84
box. According to Mr Pawan Sharma this is clear scientific evidence of the presence
of Pradeep Sharma in the said flat.
103. Mr Pawan Sharma relied on the following decisions:-
(i) Firozuddin Basheerudeen v. State of Kerala: (2001) 7 SCC 596;
(ii) Balram Prasad Agrawal v. State of Bihar: (1997) 9 SCC 338;
(iii) Gajraj v. State: Crl. A 461/2008 decided on 18.03.2009 (DHC)(DB);
(iv) Anthony D’Souza v. State of Karnataka: (2003) 1 SCC 259;
(v) Joseph v. State of Kerala: (2000) 5 SCC 197;
(vi) State of West Bengal v. Mir Mohd. Omar: (2000) 8 SCC 382;
(vii) Visveswaran v. State : (2003)6 SCC 73
(viii) State of U.P v. Anil Singh: AIR 1988 SC 1998;
(ix) Dost Mohd. v. State: Crl. A. 385/2008 decided on 01.02.2010
(DHC)(DB);
(x) Sidhartha Vashisht @ Manu Sharma v. state: (2010) 6 SCC 1;
(xi) Baso Prasad v. State of Bihar: AIR 2007 SC 1019;
(xii) Mahender v. State: Crl. A. 143/1997 dated 04.06.2010 (DHC)(DB);
(xiii) Sandy @ Ved Prakash v. State:Crl. A.626/2008 dated 19.02.2010
(DHC)(DB);
(xiv) Harpal Singh v. State: Crl. A. 362/2008 dated 25.05.2010 (DHC)(DB);
and
(xv) State v. Navjot Sandhu @ Afsan Guru : (2005) 11 SCC 600.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 50 of 84
104. Mr Hariharan, the learned counsel appearing for the acquitted person Ved
Prakash @ Kalu in the State’s appeal (Crl. A. 752/2009), submitted that there was no
evidence connecting Ved Prakash @ Kalu either with the conspiracy or with the
articles, namely, gold chain and camera. In fact, the camera was not even put to a
Test Identification Parade. He submitted that it is for this reason that the trial court,
finding no evidence against the appellant Ved Prakash @ Kalu, acquitted him as also
Ved Prakash Sharma. He, therefore, submitted that insofar as the appellant Ved
Prakash @ Kalu is concerned, the impugned judgment ought not to be interfered with
and the State’s appeal be dismissed.
Arguments in rejoinder:
Mr Sushil Kumar for the appellant R. K. Sharma
105. Mr Sushil Kumar, the learned senior counsel appearing on behalf of the
appellant R. K. Sharma, submitted that :-
(1) Although the trial court had observed that in a case of circumstantial
evidence, before a finding of guilt can be returned, the circumstances
should be such as to exclude every possible hypothesis except the one to
be proved and that there must be a chain of evidence so complete as not to
leave any reasonable ground for a conclusion consistent with the
innocence of the accused and must show that in all probability the act
must have been done by the accused, but, the chain of circumstances or
the chain of evidence has not even been discussed by the trial court.
Despite this, the appellant has been convicted;
(2) Referring to paragraph 146 of the impugned judgment, Mr Sushil Kumar
submitted that the trial court recognized the fact that the prosecution had
failed to establish that the mobile phone bearing No. 9811008825 was
owned by Shri Bhagwan. Yet, the trial court concluded that it was widelyCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 51 of 84
used for conversation by the accused persons. He submitted that if the
basic call record itself is not reliable, all other corresponding records
would have no meaning;
(3) With regard to the prosecution’s alleged motive that Shivani Bhatnagar
had been done to death because she had threatened to expose R. K.
Sharma and the other ancillary motive of the removal of secret
documents, gold chain and camera as also the allegation that Pradeep
Sharma had demanded ` 3 lacs for the job, it was submitted by Mr Sushil
Kumar that in paragraph 106 of the impugned judgment itself it has been
recognized that there is not an iota of evidence that ` 3 lacs was paid to
Pradeep Sharma. He further submitted that the prosecution has failed to
establish that there was any threat meted out by Shivani Bhatnagar to R.
K. Sharma that he would be exposed. There is no evidence with regard to
the secret documents or the hiring of the assassin or the retrieval of the
documents or the payment of ` 3 lacs. Thus, according to Mr Sushil
Kumar, the prosecution’s allegation with regard to motive is clearly
disproved;
(4) With regard to the alleged meeting of 13.01.1999 at Ashoka Hotel, Mr
Sushil Kumar submitted that there is no evidence as to how Shivani
Bhatnagar went to Ashoka Hotel. As per the prosecution, she took a taxi
to Ashoka Hotel but the taxi driver PW72 turned hostile and as such, there
is no evidence as to how Shivani Bhatnagar went to Ashoka Hotel.
Mr Sushil Kumar submitted that actually Shivani Bhatnagar never went to
Ashoka Hotel on 13.01.1999 as there was no reason for her to go there.
He submitted that as per the prosecution, the reason why Shivani
Bhatnagar was called by R. K. Sharma to Ashoka Hotel was to show her
to the assailant. But, even as per the prosecution case, the allegedCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 52 of 84
assailant Pradeep Sharma was not even present at Ashoka Hotel.
Therefore, there was no reason whatsoever for Shivani Bhatnagar to have
been called to Ashoka Hotel;
(5) Mr Sushil Kumar also submitted that the call details of Rakesh
Bhatnagar’s mobile phone number 9811156455 have not been made
available to the Court although the same were available with the
prosecution. According to him, the said call details have been suppressed
by the prosecution because the falsity of the claim that a call was received
by him at 3:30 pm on 23.01.1999 would be revealed;
(6) Mr Sushil Kumar also stated that as per the prosecution, Pradeep Sharma
had gone to B-42, Navkunj Apartments for the purposes of inviting
Rakesh Bhatnagar. According to the prosecution Pradeep Sharma had
brought an invitation card. But, no invitation card has been produced by
the prosecution as part of the evidence. Mr Sushil Kumar submitted that
although it has come in evidence that Shivani Bhatnagar’s body was lying
in the front bedroom and blood was oozing from it, her blood group was
not known. On the other hand, the blood group on the two knives, bed
sheet and metallic tawa were found to be of group ‘A’. But, as the blood
group of the victim was not known, the blood grouping done on these
articles, according to Mr Sushil Kumar, would be irrelevant;
(7) Mr Sushil Kumar also submitted that as per the prosecution when R. K.
Sharma went to Pune on 18.01.1999, he gave the number of his friend
Suresh Kukreja’s phone as the contact number to his staff in Mumbai.
Mr Sushil Kumar submitted that R. K. Sharma was an experienced senior
police officer and if he were to use this number for a conspiracy toCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 53 of 84
commit a murder then, surely, he would not make it known to his staff at
Mumbai;
(8) It was also submitted that the call records were unreliable and in any
event, even if calls were established between R. K. Sharma and the coaccused, they do not straightaway lead to the conclusion that the calls
were for the purposes of a conspiracy. He submitted that the prosecution
case must stand or fall on its own legs and for this proposition he relied
upon a decision of the Supreme Court in Sharad Birdhichand Sarda v.
State of Maharashtra : (1984) 4 SCC 116.
Mr Goswami for the appellant Pradeep Sharma
106. Mr Goswami submitted in rejoinder that the chance prints sent for comparison
were the result of manipulation of prosecution evidence. He submitted that the
prosecution has remained steadfast in its allegation that the call made by Shivani
Bhatnagar to Rakesh Bhatnagar was at 3:30 pm. Even if an approximation of
plus/minus 10 minutes is taken, the call could have been made between 3:20 and 3:40
pm on 23.01.1999. If this were to be so, then Shivani Bhatnagar was certainly alive
up till 3:20 pm. If it is assumed that Pradeep Sharma is the person who entered his
name in the entry register as Rajiv Bhatnagar, then the return entry is recorded at 3:10
pm, which clearly demonstrates that when Pradeep Sharma left the premises, Shivani
Bhatnagar was alive and well. Therefore, according to Mr Goswami, even going by
the prosecution story, Pradeep Sharma could not have been convicted of the crime.
Mr Sarfaraz Hussain for the appellant Satya Prakash
107. Mr Sarfaraz Hussain appearing on behalf of the appellant Satya Prakash in his
rejoinder submitted that although it is alleged that Satya Prakash was a tenant of Shri
Bhagwan, there is no evidence of the same. He reiterated that Satya Prakash was theCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 54 of 84
Sarpanch of village Utlodha and that there was a Gram Panchayat meeting on
13.01.1999 in the village and this clearly disproved the prosecution case that Satya
Prakash had met R. K. Sharma at Ashoka Hotel, New Delhi on that date. PW89 Inder
Prakash testified in his examination-in-chief that his brother Satya Prakash remained
in the village during the entire month of January, 1999. Mr Sarfaraz pointed out that
the prosecutor’s request for cross-examination was rejected as he had not resiled from
his statement made under Section 161 Cr. P.C. PW89 Inder Prakash further deposed
that sports functions had been organized between 18.01.1999 and 24.01.1999 and that
Satya Prakash remained in the village during that period. The prize distribution
function was held on 24.01.1999. PW71 Onkar Singh, who is the father of Shri
Bhagwan, also stated that he did not know Satya Prakash and that Satya Prakash was
not a tenant of Shri Bhagwan. It was further submitted that the prosecution has not
been able to establish any link between Satya Prakash and the mobile phone number
9811048912. He further submitted that the alleged signature made in the register of
Hotel Milan, Mumbai, was not compared with the specimen signature of Satya
Prakash and, therefore, the same could not be linked. He also submitted that the
recovery of ` 3 lacs has also not been established.
Discussion:
108. We may say straightaway that insofar as the State appeals (Crl. A. 751/2009
and Crl A 752/2009) in respect of Ved Prakash Sharma and Ved Prakash @ Kalu are
concerned, the same are liable to be dismissed. The trial court has not committed any
error in acquitting Ved Prakash Sharma and Ved Prakash @ Kalu. They were, inter
alia, sought to be implicated on the basis of an alleged recovery of a gold chain
belonging to the deceased at the instance of Ved Prakash Sharma and a Kodak camera
(with the letters RB engraved on it) at the instance of Ved Prakash @ Kalu. Both
these items were allegedly removed by Pradeep Kumar from the scene of crime and
handed over to the said persons. The trial court has disbelieved the alleged recoveriesCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 55 of 84
and from the evidence on record there is no reason for us to disagree with the finding.
Furthermore, there is no specific incriminating evidence of a significant nature as
would enable us to conclude that the said Ved Prakash Sharma and Ved Prakash @
Kalu had any involvement in the alleged conspiracy to kill Shivani Bhatnagar. The
trial court has rightly acquitted them.
109. As regards the others, the first thing that needs to be investigated is whether
Pradeep Sharma killed Shivani Bhatnagar. Because, if he did not then the entire case
of conspiracy and murder as against the others also falls to the ground. However, if
Pradeep Sharma is found to be the killer, then it will still have to be established that he
killed at the behest of the others.
Was Pradeep Sharma the killer of Shivani Bhatnagar?
110. The prosecution has relied on, inter alia, the following key elements to try and
establish that it was Pradeep Sharma who was the actual killer:-
1. The Entry Register Ex.PW61/1 at Navkunj Apartments;
2. The chance prints on the polythene cover of the sweet box recovered from the
scene of crime.
1. Register Ex.PW61/1
111. Ex. PW61/1 is the entry (visitors) register of Navkunj apartments which was
maintained at the gate. Visitors to Navkunj apartments were required to make entries
giving details of their name, address, time of entry, time of exit, apartment to be
visited, purpose of the visit and signature. There is an entry at page 47 of the said
register which shows that a person by the name of “Rajiv Bhatnagar”, H.No. 311,
Tribune Colony, Chandigarh had entered the apartments at 2:50 pm and had left at
“15:10”. He had indicated his purpose of visit as “invitation” and the flat to be visited
was shown to be “B-42”, Shivani Bhatnagar’s flat. As noticed above, the prosecutionCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 56 of 84
case is that “Rajiv Bhatnagar” was a fictitious name and that it was actually Pradeep
Kumar who had made the said entry in the register and who had gone to flat B-42.
112. PW132 Ms Deepa Verma, Sr. Scientific Officer (Documents), Forensic Science
Lab., Govtof NCT of Delhi, compared the questioned entry Q1 (Ex. PW132/23 in
page 47 of register Ex. PW61/1) with specimen writing of Pradeep Sharma. Her report
is Ex. PW132/24. In court, she testified to the following effect:-
“The examination of the questioned document with standard writings
was made by me on the basis of examination of original document and
no photographs were prepared for the purpose red mark Q1 at page
no.47 of Ex.PW61/1 was examined by me after comparing the same
with specimen writings Ex. PW132/1 to PW132/22 (S-81 to S-102) and
admitted writings A-15/1 to A-25/1 and A-26 to A-132 attributed to
Pradeep Sharma and after careful examination, I came to the conclusion
that the person who wrote the red enclosed writings and signatures
stamped and marked S-81 to S-102, A-15/1 to A-25/1 and A-26 to A-
132 also wrote the red enclosed hand writings and signatures similarly
stamped and marked Q1. The said entry is Ex. PW132/23 which
includes all the writings except 15.10 at point X i.e. the author of the
writing and signature in Ex PW132/23 is the same person who is the
author of the aforesaid standard writings.”
113. In fact, there can be no controversy with regard to the above finding because
even Pradeep Sharma has admitted in answer to Q.285 in his statement under section
313 CrPC that he wrote the questioned writing Ex. PW132/23. However, he stated
that the he was made to write the same by the police in the Crime Branch Office,
Adarsh Nagar on 21.07.2002 when, in compliance to Notice Ex. PW194/DB, heCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 57 of 84
appeared before PW203 Inspector Inder Singh and other police officials. He also
maintained that Ex. PW61/1 is a fabricated document.
114. Thus, while there can be no dispute with regard to the fact that entry Ex.
PW132/23 in the register Ex. PW61/1 is in the hand of Pradeep Sharma, the issue
which needs to be resolved is whether the entry was made on 23.01.1999 or on
21.07.2002.
115. A doubt has been raised with regard to the existence of the register Ex. PW61/1
and the entry Ex. PW132/23 on 23.01.1999 by the learned counsel for Pradeep
Sharma by submitting that had the entry been genuine and had it been in existence,
then, why did the police go to Chandigarh for the first time on 03.10.2002 (after over
2 years and 9 months)? The only police officer who went to Chandigarh to verify as
to whether there was a person by the Name of Rajiv Bhatnagar residing at H.No. 311,
Tribune Colony or not, was PW186 SI Sajjan Singh. The said witness (PW186) stated
that he joined the investigation of the case in August 2002. He further stated that on
03.10.2002, he went to the office of The Tribune, Chandigarh to enquire as to whether
Rajiv Bhatnagar or Mr Adhikari were their employees and were residents of Tribune
Colony. He met PW29 Anil Pandahi (Manager Accounts) and PW30 Rajeshwar
Chopra (Circulation Manager) who gave their written replies on 04.10.2002. He also
visited the address 311/30 A and 311A/30A and 314 and 314A and recorded the
statements of PW40 Indu Sharma, PW41 Alopi Prasad, PW42 Gurmeet Singh and
Dalip Kumar.
116. PW40 Indu Sharma testified in court that she was residing in House No. 311
since 2000 and that prior to that one Kanchan used to reside in the said house. She
further stated that no person by the name of Rajiv Bhatnagar or Adhikari lived in
house no.311 ever since she was in the colony even in 1999. She also testified thatCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 58 of 84
she had not seen accused Pradeep residing in the said house. In cross-examination she
confirmed that the police had not contacted her prior to 03.10.2002.
117. PW41 Alopi Prasad testified that he was a resident of house no.311A and was
living there since 1994. He further indicated that the ground floor is given the no.311
and the first floor is given the no.311A. Furthermore, one Kanchan used to live in
house no.311 since 1994 but, she left in 1999 or 2000. He also stated that no person
by the name of Rajiv Bhatnagar or Adhikari lived in house no.311. All the accused
and particularly Pradeep were shown to the witness and he stated that none of them
resided in house no.311 at any point of time. In cross-examination, he revealed that
he was questioned by the police for the first time on 03.10.2002. The testimony of
PW42 Gurmeet Singh singh is to similar effect.
118. PW29 Anil Pandahi, Manager Accounts, Tribune Trust, stated that no person
by the name of Rajiv Bhatnagar or Adhikari worked with the Tribune Trust. PW30
Rajeshwar Chopra, Circulation Manager, The Tribune, Chandigarh stated that there is
no house no.311 or 314 in Tribune Colony, Sector 29D, Chandigarh and there were no
Tribune houses in sector 30A, Chandigarh.
119. Upon examining the testimonies of PW186 SI Sajjan Singh, PW29 Anil
Pandahi (Manager Accounts), PW30 Rajeshwar Chopra (Circulation Manager), PW40
Indu Sharma, PW41 Alopi Prasad and PW42 Gurmeet Singh, it is clear that:-
(i) Nobody by the name of Rajiv Bhatnagar or Adhikari worked at the
Tribune Chandigarh;
(ii) Nobody by the name of Rajiv Bhatnagar or Adhikari resided at house
no.311 sector 30A, Chandigarh;
(iii) Pradeep Sharma also never resided at house no.311 sector 30A,
Chandigarh;CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 59 of 84
(iv) There is no house no.311 or 314 in Tribune Colony, Sector 29D,
Chandigarh;
(v) The police sought to verify the name and address in the entry in the
register Ex. PW61/1, for the first time, in 03.10.2002.
120. At this point, two possibilities appear to exist: One, that Pradeep Sharma made
a fictitious entry in the register on 23.01.1999 and, two, that Pradeep Sharma was
made to write the said entry in his hand on 21.07.2002 by the police. However, it is
only further evidence which would reveal as to which of these two possibilities stands
established.
121. Let us now consider the testimony of PW87 Hira Lal who was a security guard
at Navkunj Apartments from 1994 to August 1999. He stated that there was a visitors’
register at the gate and visitors had to make an entry in the register at the time of
entrance. He also stated that he was on duty on the entrance gate on 23.01.1999 and
that the time mentioned at point X over the entry Q1 in the visitors’ register
Ex. PW61/1 is written in the hand of the visitor. Again said, it might have been
written by the visitor. On his stating that some person might have come to visit the
flat of Shivani Bhatnagar on that day, the Special Prosecutor requested that he be
permitted to cross-examine the witness. Permission was granted by the trial court. On
cross-examination by the learned Special Prosecutor, the said PW87 Hira Lal stated
that he did not remember if any person by the name of Rajiv Bhatnagar had come to
Navkunj Apartments at 2.50 pm for going to flat B-42. He denied the suggestion that
entry at point Q1 was made in his presence. Subsequently, he admitted the suggestion
that on 23.01.1999 at 2.50 pm one person came to the gate of Navkunj Apartments
and made an entry in the register and wrote his name as Rajiv Bhatnagar and address
as H.No.314, Tribune Colony, Chandigarh and had indicated the number of the flat he
wanted to go to as “B-42” for the purpose of “invitation”. He also admitted theCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 60 of 84
suggestion that he and Sheelajit (supervisor) were present at the gate on duty at 2.50
pm. He, of course, stated that he had not noticed that the said person had any box of
sweets in his hands. Again said, he was not carrying any sweets box. He stated that
after making the entry that person went towards the apartments.
122. PW87 Hira Lal was asked as to whether whichever visitor entered into the
premises of Navkunj Apartments on 23.01.1999 during his duty hours had made an
entry in the visitors’ register Ex. PW61/1? After seeing the register, he replied in the
affirmative. He, however, denied the suggestion given by the learned Special
Prosecutor that he had recorded the time of departure of the said person as 15:10 in the
register Ex. PW61/1. He was confronted with portion marked B to B in Ex.PW87/1
wherein it was so recorded. He was also confronted on several other aspects of his
testimony.
123. PW79 Shilajeet Singh was the Security Supervisor at Navkunj Apartments on
23.01.1999. Like PW87 Hira Lal, this witness also was resiling from his statement to
the police, hence, the learned Special Prosecutor was allowed to cross-examine him.
He admitted that the register Ex. 61/1 was seized from him either on 23.01.1999 or
26.01.1999 by Delhi Police vide seizure memo Ex. PW79/1 and the same bears his
signature at point A. He, however, stated that entry marked Q1 in Ex. PW61/1 was
not made in his presence. PW79 was confronted with various portions of his
statement Ex. PW79/2 under section 161 Cr.P.C.
124. If we examine the seizure memo Ex. PW79/1, we find that it clearly mentions
that the visitor register has entries of 23.01.1999 also and there is specific mention of
the entry concerning “Rajiv Bhatnagar, H.No.311, Tribune Colony, Chandigarh, B-
42, Invitation Rakesh Bhatnagar 2.50 15.10 sd/- initial signature”.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 61 of 84
125. PW183 Inspector Satya Pal Singh stated that he left the spot at about 2.15 am
(i.e., on 24.01.1999) in the night and came downstairs and contacted the security
guard and he saw the register and demanded the same on which the security guard told
him that he would deliver it after taking permission from his employer. He further
stated that he instructed the said guard not to make any further entry in the said
register and to keep it in safe custody.
126. PW167 ACP P.P. Singh, stated that he visited the spot on 24.01.1999 as well as
on 25.01.1999 and he, inter alia, recorded the statements (Ex PW87/1 & Ex. PW79/1)
of PW87 Hira Lal and PW79 Shilajeet. He further stated that on 26.01.1999 he again
went to the spot and that on that day he seized the visitors’ register (Ex. PW61/1)
maintained by the security guard of Navkunj Apartments. He also stated that the said
register was for the period 07.01.1999 to 23.01.1999 and was seized vide memo
Ex.PW79/1 on which he had obtained the signature of PW79 Shilajeet Singh at point
A who had produced the said register on that day. In the course of his crossexamination, PW167 revealed that he had not looked for the visitors’ register on
24.01.1999 nor had he, on that day, asked the family members of the deceased as to
who had visited their flat on 23.01.1999. After looking at the register Ex.PW61/1, the
said witness stated that the second last entry on 23.01.1999 was in respect of Abhijeet
Kumar who is the brother of the deceased. He also revealed that he did not contact the
said Abhijeet Kumar at any point of time. He also admitted that as per the said
register one “Basruddin Dhobbi” had visited the said flat on 23.01.1999 at 3.45 pm
and left at 4.00 pm. PW167 PP Singh further disclosed in his cross-examination that
enquiries were made from the said person one or two days after the seizure of the said
register but no statement was recorded.
127. A shoddy investigation in respect of the register Ex.PW61/1 apart, a conjoint
reading of the testimonies of PW79, PW87, PW167, PW183 and the seizure memoCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 62 of 84
Ex. PW79/1, tends to suggest, notwithstanding PW79 and PW87 being hostile, that
the register Ex. PW61/1 was seized from PW79 on 26.01.1999 and at that point of
time the entry marked Q1 in the said register was in existence. If this were so, it
would definitely tend to rule out the possibility that Pradeep Sharma was forced to
make the said entry in the register on 21.07.2002 as suggested by him. Consequently,
it would indicate that Pradeep Sharma had made the said entry Ex.PW132/23 in the
said register Ex.PW61/1 on 23.01.1999. In other words, his presence at Navkunj
Apartments would stand established.
2. The chance prints
128. PW141 Constable Rajesh Kumar, a member of the crime team, stated that on
23.01.1999 when he arrived at B-42 Navkunj Apartments, the injured had already
been removed to hospital. He stated that he lifted ten chance prints from the spot.
Two chance prints (Q1 & Q9) from two drinking glass tumblers which were on the
table, four chance prints (Q2, Q3, Q4 & Q5) from the polythene cover (Ex.PW8/9) of
the sweet box lying on the “mooda”, one chance print each (Q6 & Q10) from the tea
cup lying on the tray which was on a sofa type “mooda” and from the tea cup lying on
the floor of the drawing room and two chance prints from the refrigerator in the
kitchen. PW141 proved the scene of crime visitation report Ex.PW141/1 which
indicates the time of examination as 7.00 pm on 23.01.1999. He further stated that the
original Ex.PW141/1 was handed over to the IO and the carbon copy of Ex.PW141/1
alongwith the lifted chance prints were sent to the Finger Print Expert, Finger Print
Bureau, Malviya Nagar.
129. On 25.01.1999, PW141 was again called to the spot to lift fingerprints,
whereupon he lifted three chance prints – two (Q1 & Q2) from the perfume bottle and
one (Q3) from the lipstick. The report is Ex.PW141/2. As per the said witness, the
original was given to the IO and the carbon copy alongwith the lifted chance prints
were sent to the Finger Print Bureau, Malviya Nagar.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 63 of 84
130. Ex.PW145/3 is the entry in the malkhana register which shows that, inter alia,
the sweet box in the polythene cover (momi kagaz) was deposited in the malkhana on
24.01.1999.
131. Ex.PW192/80 is a report dated 25.02.1999 of the Director, Finger Print
Bureau, Delhi Police, Malviya Nagar regarding the ten chance prints lifted on
23.01.1999 and three chance prints lifted on 25.01.1999 from the spot. The report
also indicates that the Bureau had received received specimen finger prints of 36
persons including Rakesh Bhatnagar (husband of deceased), B.S. Bhatnagar, Smt
Muny Laxmi (maid servant), Wali (maid servant), Shivani Bhatnagar (deceased), Mrs
Santosh (mother of the deceased), Ms Shevanti (sister of the deceased), Mr Satish
Kumar (father of the deceased), Abhijit Kr (brother of the deceased), Mrs Vidhya
(maid servant) and of 25 suspects. The names of the appellants did not figure in the
said list.
132. As per the said report Ex.PW192/80, the result of the examination was as
under:
“RESULT OF EXAMINATION
1. Chance print marked Q1 developed on 23.1.99 is IDENTICAL with
Right index finger marked S-1 on the finger impression slip of Rakesh
Bhatnagar (Inmate).
2. The chance print marked Q2 developed on 25.1.99 is IDENTICAL with
left index finger marked S-2 on the finger impression slip of Miss
Shevanti (Inmate).CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 64 of 84
3. Chance prints marked Q3, Q4, Q5 and Q6 developed on 23.1.99 and
chance prints marked Q1 and Q3 developed on 25.1.99 are Not-identical
with the finger/palm prints of the persons mentioned at para III(B) and
(C).
4. Chance prints marked Q3, Q4, Q5 and Q6 developed on 23.1.99 and
chance prints marked Q1 and Q3 developed on 25.1.99 have been
searched on S.D. Record and other available data bank of the Bureau
and these prints remained UN-IDENTIFIED.
5. Chance prints marked Q3, Q4, Q5 and Q6 developed on 23.1.99 and
chance prints marked Q1 and Q3 developed on 25.1.99 have been
searched on un-identified chance prints collection of the Bureau,
however they remained UN-IDENTIFIED.
6. Chance prints marked Q2, Q7, Q8, Q9 and Q10 developed on 23.1.99
are either hazy, partial, smudged and do not disclose sufficient number
of ridge details in their relative positions for comparison, hence they are
UNFIT and no opinion can be given regarding these prints.”
This report Ex.PW192/80 puts aid to the argument that the chance prints from the
polythene cover were not there on 23.01.1999 and were subsequently “manufactured”.
The report clearly establishes that the said chance prints were in existence on
25.02.1999, much before the appellant Pradeep Sharma was interrogated on
21.07.2002. Therefore, it cannot be contended that the chance prints were prepared
only on or after 21.07.2002 in order to implicate Pradeep Sharma. The chance prints
from the polythene cover of the sweetmeat box were lifted on 23.01.1999 itself andCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 65 of 84
cannot be regarded as having been created as on that date Pradeep Sharma was not
even in the imagination of the police.
133. Ex.PW192/82 is another report dated 21.04.1999 of the Finger Print Bureau
when some more specimen finger/palm prints were sent for the purposes of
comparison with chance prints Q3, Q4, Q5 and Q6 of 23.01.1999 and Q1 and Q3 of
25.01.1999. No matches were found.
134. The damning evidence in respect of Pradeep Sharma is the report
Ex.PW192/97 dated 08.08.2002. The result of examination in the said report is as
under:-
“III RESULT OF EXAMINATION
1. Chance prints marked Q3, Q4, Q5 & Q6 developed on 23-01-1999
are IDENTICAL with right thumb, left index, left middle & right
index finger impressions marked S3, S4, S5 & S6 respectively on the
finger impression slip of Pradeep Sharma S/o Amresh Dev (suspect)
r/o H.No.200, Roshan Garden, Najafgarh, Delhi.
2. Chance prints marked Q1 & Q3 developed on 25-01-1999 are notidentical with the finger/palm prints of the person mentioned at
paragraph I (A)."
Chance prints marked Q3, Q4 and Q5 which were developed on 23-01-1999 were
lifted from the polythene cover of the box of sweets. Chance print Q3 has matched
with the specimen right thumb impression S3 of the Sharma. Chance print Q4 has
matched with the specimen left finger impression S4 of Pradeep Sharma. And, chance
print Q5 was found identical with the specimen left middle finger impression S5 of
Pradeep Sharma. This clearly establishes that there were finger impressions of bothCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 66 of 84
hands of Pradeep Sharma on the polythene covering the box of sweets. Interestingly,
chance and Q6 was lifted from one of the teacups found at the scene of crime. The
said chance print matches with the specimen right index finger impression S6 of
Pradeep Sharma. It is, therefore, not correct that it is only chance print Q3 which has
matched with the specimen finger impression of Pradeep Sharma as was sought to be
urged on the part of the learned counsel for Pradeep Sharma. From the evidence with
regard to chance prints, it is clear that Pradeep Sharma held the box of sweets which
was covered in the polythene wrapper with both hands and that he had also held the
teacup in his right hand. The presence of Pradeep Sharma inside Shivani Bhatnagar’s
flat on 23-01-1999 stands established.
135. Mr Goswami, the learned counsel for Pradeep Sharma, had argued that the
fingerprint report exhibit PW 192/97 was of a doubtful nature. His argument was
founded on the basis of dates which appeared in the said report and exhibit PW
192/95. It was contended that the fingerprint report exhibit PW 192/97 bears the date
08-08-2002 whereas exhibit PW 192/95 shows that the fingerprint expert had
conducted the examination on 21-08-2002. It was, therefore, questioned as to how the
report could be dated 08-08-2002 when the examination itself had been conducted on
21-08-2002? This argument is easily negated upon a close scrutiny of the said two
documents. Exhibit PW 192/97, which is undoubtedly the fingerprint report and is
dated 08-08-2002, carries a note which the learned counsel seems to have missed.
The note reads as under:–
"Duly marked enlarged photographs of identical prints will be
supplied in due course."
136. Exhibit PW 192/95 is nothing but the enlarged photographs of chance print Q3
and specimen print S3. The date on this document is 21-08-2002. This date is not the
date of examination but the date of supply of the enlarged photographs. TheCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 67 of 84
examination and comparison of the fingerprints had been done on or before 08-08-
2002 and it is only the enlarged photographs of the identical prints which were
subsequently supplied on 21-08-2002 as mentioned in the note in exhibit PW 192/97
itself. Thus, the argument of the learned counsel for Pradeep Sharma is not tenable.
There is no escape from the fact that the fingerprints of Pradeep Sharma were found
not only on the polythene cover of the box of sweets but also on one of the teacups.
137. We now need to consider the timings of Pradeep Sharma’s visit to Shivani
Bhatnagar’s apartment on 23-01-1999. In the visitors’ register Ex.PW61/1 the entry
Ex.PX132/23 shows the time of entry of “Rajiv Bhatnagar” (whom the appellant was
personating as) to be 2.50 pm. And, the time of exiting from the complex has been
shown as “15:10”. As per the handwriting expert, the figures “15:10” are not in the
handwriting of Pradeep Sharma. No one has owned up to having written the said
figures. So, not much reliance can be placed on the time “15:10” as representing the
actual time when Pradeep Sharma (under the false identity of Rajiv Bhatnagar) left the
apartment complex.
138. The next entry in the register is of 3:45pm of one Wasaluddin. He would have
been a key witness, but, unfortunately, for reasons which we cannot decipher the
prosecution has not arrayed him as a witness. In between, we have the testimony of
PW66 Rakesh Bhatnagar who stated that he had received a call from Shivani that
someone had come from the side of his friend Mr Adhikari from Tribune, Chandigarh
to invite him on the marriage of his son. In fact, PW66 stated that Shivani had told
him that someone from Chandigarh had come to invite him. According to PW66 he
queried Shivani as to who is this Adhikari? Thereupon, according to PW66, Shivani
asked him to speak to the person present in the flat. That person then came on the line
and gave his name, which he could not recall, but he was positive that his surname
was given as “Sharma”. The voice was of a young male and he invited PW66 RakeshCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 68 of 84
Bhatnagar for the marriage and he (PW66) told him – okay. The said call was received
by PW66 at about 3 pm on 23-01-1999. He also stated that the voice of Pradeep
Sharma was the same as the one he had heard on the telephone on 23-01-1999 when
Shivani had asked him (the person in the flat) to talk to him (PW66 Rakesh
Bhatnagar). When he was cross-examined by the learned counsel for R.K. Sharma,
PW66 Rakesh Bhatnagar denied that he had made a false statement before court that
the time of the call was 3 pm. He clarified that by 3 pm he meant that it could be 3
pm or 3.15 pm. However, at the same time PW66 also stated that it is correctly stated
in the FIR that he had received a phone call from Shivani at about 3.30 pm on 23-01-
1999. Whether the phone call was at 3 pm or 3.15 pm or 3.30 pm does not in any way
help the appellant Pradeep Sharma as there is nothing sacrosanct about the entry
“15:10” in the register. First of all, we don’t know who wrote “15:10” and, secondly,
assuming that it was Pradeep Sharma himself, can we expect him to be truthful about
the exit time when he was not truthful about his name and address?
139. We also have the postmortem examination report Ex.PW3/1A which gives the
time since death as 21 hours. The autopsy was concluded on 24-01-199 at 12:30 pm.
Consequently, the time of death would be about 3:30 pm on 23-01-1999. These
timings can never be exact and are at best approximations. But, we find that it
coincides, more or less, with the visit of Pradeep Sharma to Shivani’s flat and his
conversation with PW66 Rakesh Bhatnagar.
140. Thus, it is clear that the evidence on record points in the direction of Pradeep
Sharma as being the killer of Shivani Bhatnagar.
Links with others
141. Pradeep Sharma is alleged to be Satya Prakash’s nephew (sister’s son). Satya
Prakash is alleged to be a tenant in a premises in Gurgaon allegedly belonging to ShriCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 69 of 84
Bhagwan Sharma who is the son of Onkar Sharma who, in turn, is known to RK
Sharma as he was in the police and had worked under RK Sharma. It is also alleged
that Satya Prakash knew RK Sharma independently also as RK Sharma had, in 1996,
inaugurated a portion of a school (and there is a plaque to this effect) at village
Utlodha of which Satya Prakash was the Sarpanch.
142. It is alleged that on the date of the murder, Pradeep Sharma was in touch with
Shri Bhagwan Sharma. The prosecution case is that on 23-01-1999 at 11:55 am a
phone call of duration 55 seconds was made from mobile phone number 9811008825
to landline number 5018092 installed at House No. 201, Roshan Garden, Garden,
Najafgarh, Delhi. The number 9811008825 is alleged to have been used by Shri
Bhagwan Sharma and telephone number 5018092 is said to be installed at Pradeep
Sharma’s house. From the section 313 CrPC statement of Pradeep Sharma it is clear
that he resides at house no.200, Roshan Garden, Najafgarh, Delhi.
143. It is further alleged that a call was made on 23-01-1999 at 13:17 hours (1.17
pm) for 9 seconds from 9811008825 to Shivani Bhatnagar’s landline number
2726729.
144. At 13:35 hours a call was made from 5018092 to 9811008825 for 120 seconds
and at 15:48 hours a call was made from a PCO number 6259071 to 9811008825.
145. According to the prosecution, Shri Bhagwan Sharma made the call at 11:15 to
Pradeep Sharma with regard to their plan to kill Shivani Bhatnagar. Then, a call of 9
seconds was made by Shri Bhagwan to Shivani’s house just to ascertain that she was
home. This was reported to Pradeep Sharma when the latter gave him a call at 13:35
hours. It is thereafter that Pradeep Sharma left his home for Shivani’s apartment to
complete the job. After the murder of Shivani Bhatnagar, at 15:48 hours PradeepCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 70 of 84
Sharma rang up from 6259071 (the number of a PCO) to inform Shri Bhagwan
Sharma on his mobile phone number 9811008825 that the job had been done.
146. These four calls are reflected in the call details Ex. PW135/28 which is in
respect of phone number 9811008825. As per the counsel for the appellants, there are
several difficulties. First of all, according to them, Ex.PW135/28 is inadmissible as it
does not comply with section 65B of the Indian Evidence Act, 1872. Secondly,
Ex.PW135/28 is intrinsically unreliable. Thirdly, there is no evidence that Shri
Bhagwan was the owner/user of phone number 9811008825. It is also urged that the
prosecution has not established that landline number 5018092 was Pradeep Sharma’s
landline number.
147. PW135 Major AR Satish (retd) stated that in the year 1999, two mobile
companies namely Essar and Airtel were operating in Delhi. He further stated that he
had worked with Essar as Executive (Administration) from 01-08-2001 to 27-09-
2002. He also stated that Essar Company is now known as Hutchison. He further
testified that in order to operate any mobile phone instrument, a SIM card has to be
inserted and every SIM card has an individual SIM number. Every mobile phone
instrument also has a unique distinct number which is called the IMEI number. He
stated that whenever a call is made or received the computer automatically records the
date, calling number, called number, time, duration of the call, cell ID and the IMEI
number of the instrument. He stated that the printout of mobile telephone number
9811008825 was got taken out by him which was running in six pages and is for the
period 03-01-1999 to 23-01-1999 and all the pages of the printout are collectively
marked as exhibit PW 135/28. He also stated that all the pages of exhibit PW 135/28
bear his signatures at point A as well as the seal of the company and that it is a correct
printout.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 71 of 84
148. In the course of his cross examination, PW 135 admitted that the format in
respect of the printout of exhibit PW 135/1 to 8 is different from the format of the
printout of exhibit PW 135/28. He also admitted that from the printout exhibit PW
135/28 it cannot be said as to when the printout was taken. He also admitted that
exhibit PW 135/28 does not contain the IMEI number nor does it bear the call data
record nor does it carry the file number, time or date of taking out the printout from
the call data record and the computer system on which the printouts are taken. He
also revealed that the method of recording the month, date and year of the call in the
format as mentioned in column number two of exhibit PW 135/28 can be changed
manually but, unless it is so changed, the sequence of recording the date, month and
year in exhibit PW 135/28 would remain the same. He also stated that usually, the
manual change in the format of recording of month, date and year is not made and it is
only done when somebody asks for the call details to be made in a particular format.
Most importantly, PW 135 stated that the date format cannot be changed in between
while taking out a printout from month, date and year to the other format of date,
month and year. He also stated that temporary call details remain temporary for a few
days may be two days or so from the calling period.
149. Let us now analyse Ex.PW135/28 in detail as this document is of great
significance. Ex.PW135/28 was sent by the Nodal Officer, Hutchison Essar Telecom
Limited to Mr M.K. Sharma, ACP, Delhi Police, Crime Branch, Adarsh Nagar, Delhi
alongwith a covering letter (Ex.PW135/27) dated 27-09-2002. As per the said
covering letter, the call details (Ex.PW135/28) of mobile number 9811008825 were
for the month of January 1999. The beginning portion of Ex.PW135/28 is as under:-CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 72 of 84
150. It is apparent that the call details pertain to phone number 9811008825. It is
also clear that the details given are – calling number, date, time, called number,
duration, incoming/outgoing and cell ID. Interestingly, the heading is – “This is a
temporary call detail statement”. The IMEI numbers, however, are not indicated. It is
also relevant to note the date format indicated at the head of the table –
“MM/DD/YY”. This implies that the dates would be two digits for the month, two
digits for the day and two digits for the year, in that sequence. An example of the
MM/DD/YY format would be 03/10/97, which would translate to March 10
th
, 1997.
The first entry in Ex.PW135/28 is of the date “3/1/99”. First of all, this is not in the
format of MM/DD/YY. Because if it were, then the date would have read as
“03/01/99” as two digits each have been prescribed for the month, day and the year.
Secondly, even if we ignore the fact that the month and day have not been printed in
two digits each, even the sequence is wrong. The MM/DD/YY format requires that
the month be indicated first, followed by the day and year. The entry “3/1/99” would
then mean March 1, 1999 but, that is not what the covering letter (Ex.PW135/27) says.
As per the contents of the said letter, the call details are for the month of January
1999. The obvious conclusion is that “3/1/99” refers to 3
rd
January, 1999. Implying
thereby that, the entry “3/1/99” is not in the format (MM/DD/YY) indicated at the
head of the column for dates.
151. What is even more noteworthy is the fact that from 3
rd
January 1999 till 12
th
January 1999 (inclusive) the manner of representing the date continued as “day-CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 73 of 84
month-year”. But, right in the middle of the call details statement from 13
th
January,
1999 onwards the date format switches to “MM/DD/YY” or the “month – day – year”
sequence. This can be easily discerned from the relevant portion of Ex.PW135/28
extracted below:-
152. The entries for 12
th
January, 1999 are shown as “12/1/99” but, for 13
th
January,
1999 the date format has inexplicably switched to “MM/DD/YY” (01/13/99). This is
not supposed to happen in a continuous computer printout as indicated by PW135
himself.
153. Another aspect to be kept in mind is as to why did the date format switch on
and from 13-01-1999? We must remember that for this case, 13-01-1999 is a
significant date. It is on this date that the alleged meeting between RK Sharma, Shri
Bhagwan and Satya Prakash took place in Ashoka Hotel and when Shivani Bhatnagar
was allegedly pointed out by RK Sharma. It is also alleged that on this date RK
Sharma also pointed out her flat at Navkunj Apartments.
154. Ex.PW135/28 has another unexplained problem. At several places in the said
statement of call details the times of calls have not followed the logical sequence. To
illustrate this point, we have extracted the alleged call details of 23-01-1999:-CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 74 of 84
155. It is obvious that the times have been shown in the “hh:mm:ss” format. In this
format the time begins at “00:00:00” and ends at “23:59:59”. So, as the day
progresses, the hours increase from “00” to “01”, “02” and so on till “23”. The
computers of the cellphone company also record the calls in this sequence. This is
admitted by PW135 in his cross-examination when he stated – “Time of call made or
received is also recorded in sequence automatically”. Of course, the call details can
be obtained from the database in ascending or descending order. But, there cannot be
a break or a switch in the sequence.
156. In the above extract, we find that the time of the second call is “13:16:34”
followed by “13:17:19”, “13:17:44” and so on till “19:48:58” and then there are two
calls at “0:00:00” followed by a new ascending sequence from “11:55:33” onwards till
“16:40:47”. Computers follow a sequence. Calls are recorded sequentially. WhenCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 75 of 84
PW135 was asked to explain this break in sequence, he replied – “It is correct that the
recording of the time is not in sequence as it ought to be.”
157. When we examine the above extracted portion of Ex.PW135/28 we find that in
the time column there are several entries of “0:00:00”. Such entries appear at several
places in Ex.PW135/28. When, in the course of cross-examination, PW135 was asked
to explain this he replied that – “00-00-00 means system has not been able to pick up
the time data correctly”.
158. Another anomaly in Ex.PW135/28 would be apparent by observing the
following extract from it:-
159. Points X10 and X11 are two calls of the same time (14:28:41) and for the same
duration (40 secs.). The calling (9811008825) and called (9811008838) numbers are
the same in both the entries except that in X10 the calling number is prefixed by the
country code of India “91” whereas the called number is not so prefixed and this is
reversed in X11 where the calling number is not prefixed by “91” but the called
number is. Moreover, while X10 has been shown as an outgoing call, X11 is depicted
as an incoming call. When asked to explain this, PW135 replied – “I can not explain
as to how one call is incoming from the same phone and one is outgoing at the same
time from the same number”.
160. Finally, we find that at point X15 of the following extract from Ex.PW135/28
there is a misalignment of data.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 76 of 84
A proper explanation could not be given by PW135 as he simply said – “It does not
appear to be proper time picked up by the computer”. PW135, however, denied the
suggestion that he had, under pressure from the police, signed the call details as
contained in Ex.PW135/28 which was brought by them. He admitted that 27-09-2002
was his last working day in the office.
161. Mr Pawan Sharma, appearing for the State, sought to explain the entry at point
X15 by submitting that the called number was “115435858” and the remaining digits
[ie., 981 18963 5] upto “60” were part of some mobile number. Viewed in this was
way (by ignoring the digits “091 18963 5”), the said entry would read as under:-
“919811008825 12/1/99 15:41:59 115435858 60 O: 11282”
162. This explanation does not coalesce very well with printouts said to be
generated by the computer system. If we accept that the digits “981 18963 5” are part
of a mobile phone number, then, the question arises as to why would there be three
numbers in the same row when only two numbers (the calling phone number and the
called phone number) are to appear? Three numbers can only appear if data of
another row is snipped and added on to the the row in question. This cannot happen
with computer generated data unless there is a malfunction. It is not a malfunction
because the cell ID is correctly placed. If there were a displacement of data it would
continue throughout the rest of the call details. This is not so. Of course, it is quite
possible for an individual using a word processor to cut and paste data and, in doing
so, mistakenly splice the data of two rows.
163. In State v. Navjot Sandhu: (2005) 11 SCC 600 the supreme court, with
reference to call records, observed as under:-CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 77 of 84
"150. According to section 63, secondary evidence means and includes,
among other things, "copies made from the original by mechanical
processes which in themselves ensure the accuracy of the copy, and copies
compared with such copies". Section 65 enables secondary evidence of the
contents of a document to be adduced if the original is of such a nature as
not to be easily movable. It is not in dispute that the information contained
in the call records is stored on huge servers which cannot be easily moved
and produced in the court. That is what the High Court has also observed at
para 276. Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can
identify the signatures of the certifying officer or otherwise speak of the
facts based on his personal knowledge. Irrespective of the compliance with
the requirements of section 65-B, which is a provision dealing with the
admissibility of electronic records, there is no bar to adducing secondary
evidence under the other provisions of the evidence act, namely, sections
63 and 65. It may be that the certificate containing the details in subsection (4) of section 65-B is not filed in the instant case, but that does not
mean that the secondary evidence cannot be given even if the law permits
such evidence to be given in the circumstances mentioned in the relevant
provisions, namely, sections 63 and 65."
(Emphasis supplied)
164. As in the case before the Supreme Court, in the present case also there is no
certificate containing the details spelt out in sub-section (4) of section 65-B of the
Indian Evidence Act, 1872. However, as observed by the Supreme Court, there is no
bar on the prosecution (or for that matter, the defence) in adducing secondary
evidence in the form of exhibit PW 135/28 read with the testimony of PW 135. It is
for this reason that, despite there being no certificate in terms of sub-section (4) ofCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 78 of 84
section 65-B of the Indian evidence act, 1872, we have examined exhibit PW135/28 in
the light of the testimony of PW135 and the submissions made by the counsel for the
parties. Considering the totality of these circumstances we are of the view that exhibit
PW135/28 is an unreliable document. We are of the view that exhibit PW135/28 is
not a direct computer printout of the data available in the computers/servers of the
telephone company. The impression we get is that the data as appearing in exhibit
PW 135/28 has been tampered with. Certain details have been blanked out and others
have been introduced. The date sequence and the time sequence has been altered as
discussed above. These are clear indicia of tampering/manipulation. On the basis of
available evidence we cannot determine as to which part of exhibit PW 135/28 is
authentic and which part isn't. We are also not clear as to whether the tampering was
done at the instance of RK Sharma, who was a powerful police officer, or at the
instance of someone else. The fact remains that the call records exhibit PW 135/28
pertaining to the mobile phone number 9811008825 are unreliable.
165. At the same time we must keep in mind that every call made or received is
recorded in the databanks of the cell phone company. This means that every call
record in respect of a particular phone number has a mirror image in the databank of
the other called/calling number. So, while the call records exhibit PW 135/28 of the
mobile phone number 9811008825 may not be reliable, particular entries can still be
cross checked with the call record of the called/calling number. With this in mind, let
us go back to the alleged exchange of calls between Pradeep Sharma and Shri
Bhagwan Sharma on 23-01-1999.
166. The first call was allegedly made at 11:55. It was a call which allegedly
originated from 9811008825 and the called number was 5018092. Unfortunately
there are no call records of 5018092 for 23-01-1999. PW176 Suresh Kumar Kathuria,
PS to GM Janakpuri, MTNL, Delhi stated that in the year 2002, in August, he wasCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 79 of 84
posted as PS to GM (Wext) having office at Mayapuri. Police had contacted him in
respect of phone no. 5018092. He proved, inter alia, the following call details in
respect of phone number 5018092:-
Ex.PW176/8 STD call details for the period 01-05-99 to 15-07-99;
Ex.PW176/9 STD call details for October 1999: nil report;
Ex.PW176/10 Statement that STD/ISD details for June 1998, August
1998 & October 1998 are not available in the CD.
Ex.PW176/11 STD call details for the period 16-09-98 to 15-11-98;
Ex.PW176/12 STD call details for the period 16-03-99 to 30-04-99;
There is no mention, even in these records, of mobile phone no. 9811008825. Thus,
even if we search for the mirror entry in the call records of 5018092, we find that it is
not there. The conclusion is that the prosecution has not been able to establish that, on
23-01-1999, a call was made from 9811008825 to 5018092 at 11:55 hours. By the
same logic, even the call allegedly made from 5018092 to 9811008825 at 13:35 hours
is not proved.
167. This is apart from the question that according to Pradeep Sharma’s counsel, the
phone number 5018092 does not even belong to him but stands in the name of one
Ram Phal Sharma of village Dichaon Kalan. The said Ram Phal Sharma has not been
produced by the prosecution. Anyhow, from the testimony of PW176 it is clear that
the original O.B. Ex.PW176/3 stands in the name of Ram Phal Sharma and not
Pradeep Sharma. The registration demand note Ex. PW176/5 is also in favour of Ram
Phal Sharma. The duplicate application Ex.PW176/6 also shows the applicants name
as Ram Phal Sharma and the address where the telephone is to be installed as “near
Pole no.117, vill. & P.O. Dichaon Kalan, New Delhi. PW176 also stated in
examination-in-chief that all the documents Ex.PW176/1 to 176/12 and photocopy
Ex.PW176/13 were seized from him vide memo Ex.PW156/1.CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 80 of 84
168. On being cross-examined by the learned counsel for Pradeep Sharma, PW176
stated that as per his record the said phone 5018092 is in the name of Ram Phal
Sharma of village Dichaon Kalan. Importantly, with regard to Ex.PW176/13, he
stated that it is not in his hand, it was not recorded in his presence and that he did not
even have the original of Ex.PW176/13. Moreover, he admitted that he put his
signature and seal on Ex. PW176/13 at the instance of the police. Ex.PW176/13 is as
under:-
169. It is purportedly signed by some supervisor, record section, Najafgarh. But, he
has not been produced. Nor has PW176 or anybody else testified that he recognizes
the signature. In fact, even PW176 clearly stated that he did not even have the
original. So, his signature and seal on the said paper does not in any way authenticateCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 81 of 84
it. Even though it is marked as an exhibit, the same cannot be said to have been
proved in the manner required in law. Thus, even the alleged connection between
Pradeep Sharma and phone number 5018092 has not been established by the
prosecution.
170. We now move on to the alleged call made on 23-01-1999 at 13:17 hours from
9811008825 to 2726729 (Shivani Bhatnagar’s landline). We have already held that
the call records Ex.PW135/28 of phone no. 9811008825 are unreliable.
Consequently, the factum of this call can only be verified from the call records of
2726729. But, the prosecution has not produced them! So, this alleged call also
remains in the realm of an allegation and does not transcend the threshold of proof.
171. An alleged call was made from 6259071 (a PCO at South Extension) by
Pradeep Sharma to phone number 9811008825. PW104 Mohd. Arif stated that he
working in the PCO Booth in South Extension Part II, New Delhi opposite to
Mehrasons Jewellers and that the owner of the said booth is one Tariq Wali. He stated
that, inter alia, phone bearing 6259071 was installed in the said booth. He stated that
on 03-08-2002 Inspector Inder Singh of Crime Branch had come there. No member of
the public was with him nor was accused Pradeep Sharma with him. As PW104 was
allegedly resiling from his statement made to the police earlier, the learned Special PP
cross-examined him. He denied the suggestion that he had made any statement to the
police that on 03-08-2002 accused Pradeep Sharma had come to the said booth and
had pointed out the same to the effect that he and his associate made a phone call from
this booth on 23-01-1999. He, however, proved Ex.PW104/2 (phone bill of 6259071)
which was seized vide Ex.PW104/3. There no call records of phone no. 6259071 to
enable us to verify as to whether a call was made to 9811008825 on 23-01-1999.
Thus, there is no evidence of Pradeep Sharma having made a call on 23-01-1999 fromCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 82 of 84
the phone number 6259071 installed at the said PCO booth to the mobile phone No.
9811008825.
172. From the above discussion, it is clear that the prosecution has failed to establish
the linkages between Pradeep Sharma and the other accused through the said four
alleged phone calls of 23-01-1999. In fact, there is no evidence of any phone calls
between Pradeep Sharma and the other appellants. We have already held
Ex.PW135/28 to be unreliable. Even as per the prosecution case, Pradeep Sharma was
not part of the conspiracy in the early stages, when, it was allegedly hatched in
December 1998. He was also not party to the alleged meeting at Ashoka Hotel on 13-
01-1999. It is only thereafter, as alleged by the prosecution, that Satya Prakash, as a
part of the agreed conspiracy, contacted his nephew Pradeep Sharma and required him
to liquidate Shivani Bhatnagar and to meet him at Sunder Nagar Market on 19-01-
1999. It is alleged that on that date, Pradeep Sharma met Satya Prakash, as arranged,
and the other co-accused Shri Bhagwan was also present and Satya Prakash, once
again, persuaded Pradeep Sharma to take up the task and allegedly assured him that he
would be reinstated in HUDA, where he had worked and that the case pending against
him in Chandigarh would be finished in case he did the job. It is also alleged that
Pradeep Sharma demanded a sum of Rs. 3 lacs in addition to the above mentioned
favours and this was conveyed to Shri Bhagwan, who paid a sum of ` 50,000/- to
Pradeep Sharma as advance. These allegations have not been substantiated by any
evidence. They are merely made on the basis of disclosure statements allegedly made
by the accused which, without leading to any discovery of any fact, would not be
admissible in evidence. There is no evidence that Satya Prakash had engaged the
services of Pradeep Sharma. There is no evidence that a meeting between Pradeep
Sharma and Satya Prakash and Shri Bhagwan actually took place on 19-01-1999.
There is no evidence that a sum of ` 50,000/- was paid by Shri Bhagwan to Pradeep
Sharma or that the latter had agreed to to the job for a sum of ` 3 lacs and otherCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 83 of 84
favours. The only link is the relationship between Satya Prakash and Pradeep Sharma
but that alone is insufficient for linking Satya Prakash and the rest (other than Pradeep
Sharma) with the crime.
173. Once the link between Pradeep Sharma and the other appellants, insofar as the
crime is concerned, is snapped, there is serious doubt about the involvement of the
others. Although the motive behind Pradeep Sharma killing Shivani Bhatnagar is
unclear and has not been established, we have already found, on the basis of other
overwhelming scientific and circumstantial evidence, that Pradeep Sharma was the
person who killed Shivani Bhatnagar. Did he act alone? Did he act at the behest of
RK Sharma and the other appellants or did he act at the instance of someone else?
These are questions which we cannot answer on the basis of the material before us.
The quality of evidence before us is not of a high caliber. The key document
Ex.PW135/28 is riddled with so many problems that it cannot be relied upon. Judges,
like other human beings, also have suspicions but, judges, unlike others who are free
to arrive at their own conclusions, cannot and do not convict on the basis of mere
suspicion. The prosecution has to prove its case beyond reasonable doubt. We are
afraid that the prosecution, in our view, has failed to do so insofar as appellants RK
Sharma, Shri Bhagwan Sharma and Satya Prakash are concerned. The prosecution,
however, succeeded in proving its case insofar as Pradeep Sharma is concerned.
Consequently, Pradeep Sharma’s conviction under section 302 IPC stands confirmed
and so does the sentence awarded to him. The other three appellants, namely, RK
Sharma, Shri Bhagwan Sharma and Satya Prakash get the benefit of doubt and they
stand acquitted of all charges. The impugned judgment and order on sentence, insofar
as it concerns them, are set aside. They – RK Sharma, Shri Bhagwan Sharma and
Satya Prakash are directed to be released forthwith, if not required in any other case.
Insofar as Pradeep Sharma is concerned, while the charge under Section 120B IPC isCRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 84 of 84
not proved, his conviction under Section 302 IPC and sentence thereon stands
confirmed. He shall serve out the rest of his sentence.
174. Consequently, Crl A. 357/2008, Crl A. 486/2008 and Crl A. 396/2008 are
allowed and Crl A. 338/2008 is dismissed as above. The State appeals – Crl A.
751/2009 and Crl A.752/2009, are also dismissed.
BADAR DURREZ AHMED, J
MANMOHAN SINGH, J
OCTOBER 12, 2011
SR/HJ