1

INTHECOURTOFSH.J.R.ARYAN, ADDITIONALSESSIONSJUDGE,NEWDELHI
StateofU.PVsSukhdevYadav@Pehlwan FIRNo.192/02 U/s364/302/201IPC P.SKaviNagar. S.C.No.76/08

ORDERONSENTENCE 1. Bothsideshavebeenheardonthepointofsentence.Accused

SukhdeveYadav@PehlwanhasbeenconvictedU/s364/302&201 IPC read with Section 34 IPC. Other two coaccused already convicted in this case namely Vikas and Vishal Yadav had been awardedasentenceoflifeimprisonment. LdSpecialP.PMr.Joon argued for extreme penalty of capital punishment for the present accusedandforthatargumentsandsubmissionLdProsecutortried toimpressuponthiscourtthatcaseofthepresentaccusedcouldbe considered distinguishable from other two accused whereby the present accused ought not to claim a parity. It is submitted that presentaccusedwouldbesaidtobeahiredkillerwhocommitted murderofthedeceasedvictimformoneyorreward.Prosecutortried tojustifythispointbythefactthatpresentaccusedwasemployedin

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aliquorshopbusinessofothertwoaccusedpersons. Itisfurther arguedthatpresentcasecouldbetreatedtobean''Honourkilling'' andtakingsupportfromSupremeCourtjudgmentinBhagwanDass Vs State 2011 III AD (SC) 157 the concluding paragraph in the judgment has been referred to as a support to submissions for extremedeathsentencewheretheHon'bleSupremeCourthasheld that there was nothing 'Honorable' in 'Honour' killing and it were nothing but barbaric and brutal murder by bigoted, persons with feudal minds. It has been further held that 'honour' killing for whateverreasonscomeswithinthecategoryofrarestofrarecases deserving death punishment. Ld Prosecutor argued that present caseiscoveredbytheabovestatedSupremeCourtjudgmentand accusedpersonsinthepresentcasecommittedmurderwhichcould bedescribedas'honour'killingandthusevenextremepunishmentof deathsentenceoughttobeawardedHefurtherreferredtoBachan SinghandMachhiSingh'sjudgmentonthepointthatwhenmurder committed was extremely brutal, grotesque, diabolical, revolting or committedinadastardlymannerwhicharousedintenseandextreme indignationofthecommunity. Orwhere murder wascommitted for a motive which evinced total depravity and meanness e.g murder by hired assassins for
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moneyorrewardorcoldbloodedmurderforgainsofaperson. Ld prosecutorfurtherreferredtotheconductofaccusedinabsconding for three years after commission of this crime which could be consideredasaggravatingfactortoweighforenhancedpunishment. 2. Ld counsel Mr. Dey assisting Ld Prosecutor, appearing for

defecto complainant Ms.Neelam Katara, also argued for death penaltyforthepresentaccusedandldcounselsubmittedthatwhen doctrineofproportionalitywasappliedandexaminedtheoffenceof murderinthepresentcasefellinthecategoryofrarestofrarecase when victim deceased was first abducted and then murdered and thereafterbody ofthe victim wasputonflamesandthat reflected depravityofthemindoftheculprits.LdcounselreferredtoSupreme CourtJudgmentinDhananjayChatterjee'scaseandreferredtopara 15ofthejudgmentwhichholdsasbelow; ''In our opinion, the measure of punishment in a given casemustdependupontheatrocityofthecrime;theconductof thecriminalandthedefencelessandunprotectedstateofthe victim. Impositionofappropriatepunishmentisthemannerin whichthecourtsrespondtothesociety'scryforjusticeagainst the criminals. Justice demands that courts should impose punishmentfittingtothecrimesothatthecourtsreflectpublic abhorrenceofthecrime.Thecourtsmustnotonlykeepinview the rights of the criminal but also the rights of the victim of crimeandthesocietyatlargewhileconsideringimpositionof
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appropriatepunishment.'' 3. Accordingly it has been argued and pressed for prosecution

side that offence of murder in the present case called for death penalty because of peculiar facts and circumstances referred to above. 4. Ld counsel Sh. Sushil Bajaj for accused relied upon Bachi

Singh'sjudgment1983S.CCases681andldcounselarguedthat the offence held proved against accused did not bring case in a categoryofrarestofrareandtherewasnoaggravatingcircumstance tocallforextremedeathpenalty. Ihavegivenmyconsiderationto allthesecontentionsandarguments. BachhiSingh'sjudgmentithasbeenheld, Thefollowingquestionsmaybeaskedandansweredasa test to determine the 'rarest of rare' case in which death sentencecanbeinflicted: (a) Is there something uncommon about the crime which renderssentenceofimprisonmentforlifeinadequateandcalls foradeathsentence? (b) Are the circumstances of the crime such that there is no alternativebuttoimposedeathsentenceevenafteraccording maximum weightage to the mitigating circumstances which speakinfavouroftheoffender? ThefollowingguidelineswhichemergefromBachanSingh casewillhavetobeappliedtothefactsofeachindividualcase wherethequestionofimpositionofdeathsentencearise:
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(i)Theextremepenaltyofdeathneednotbeinflictedexceptin gravestcasesofextremeculpability. (ii)Beforeoptingforthedeathpenaltythecircumstancesofthe 'offender' also require to be taken into consideration along withthecircumstancesofthe'crime'. (iii)Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balancesheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigatingcircumstances hastobeaccordedfull weightage andajustbalancehastobestruckbetweentheaggravting and the mitigating circumstances before the option is exercised. BachanSinghV.StateofPunjab,(1980)2SCC684. 5. Question for consideration and determination is whether

offenceofaccusedfellinacategoryofrarestofrareIcouldnotfind myselfaggreabletocontentionsfromtheprosecutionside.Acaseof 'honour'killingasitappearsfromthejudgmentswheresuchacrime wasfoundtohavebeencommittedinvolvedthevictimofthecrimea near and dear to the culprit himself and murder of such a victim
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came to be committed only as a illconceived notion of saving the 'honour'ofthefamily.InBhagwanDasscaseaccusedappellantwas noneelsebutfatherofhisvictimdeceaseddaughterandthemotive behindkillingwasabeliefofappellantthathisdaughterwaslivingin aincestuousrelationshipwithhernearrelation.Inthepresentcase accusedhavebeenattributedamotivethatvictimdeceaseddareto developandproceedinloveaffairswiththesisterofaccusedVikas Yadas. Such a situation may not describe the case as a murder committedas''honour''killing. 6. Lddefencecounselrightlyarguedthattheoffencecouldnotbe

described as extremely brutal, grotesque, diabolical, revolting. Ld counselpointedoutthatprosecutioncaseitselffromthepostmortem reportisthatasingleblowbyhardobjectgiveninthevitalbodypart ofthedeceasedi.eheadresultedindeathofthevictimandburns foundonthebodywerepostmortem. Puttingbodyonthefirewas withanintention toabolish incriminatingevidence andforthat act accusedhavealreadybeenconvictedU/s201IPC.Accordinglythe case may not be described as exceptional where offence was committedwithbrutality. 7. Case of the appellant cannot be taken to fall in a category

where murder was committed with a motive which evinced total

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depravityandmeannesse.gmurderbyhiredassassinformoneyor rewardmerelythataccusedwasstatedtobeintheemploymentin theliquorshopbusinessofothertwoaccusedfamily. 8. Thecaseoftheappellantcannotbesaidtofallinacategoryof

rarest of rare case. Accordingly I award a sentence of life imprisonment and a fine of Rs.10,000/ with default sentence of 2 yearsR.IU/s302IPC.Ifurtherawardsentenceof7yearsR.Ianda fineofRs.5,000/withdefaultsentence ofsixmonthsR.IU/s 364 IPC. I further award a sentence of 3 years R.I and a fine of Rs.5,000/withdefaultsentenceofsixmonthsR.IU/s201IPCupon accused.Substantivesentencesmayrunconcurrently.
AnnouncedintheOpen courton12/07/2011. (J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01)

NEWDELHIDISTRICT,NEWDELHI.

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INTHECOURTOFSH.J.R.ARYAN, ADDITIONALSESSIONSJUDGE,NEWDELHI
DateofInstitution:14.10.2005 Dateofjudgmentreservedon:03.06.2011 Dateofdecision:06.07.2011 S.C.No.76/08 INTHEMATTEROF:

StateofU.PVsSukhdevYadav@Pehlwan FIRNo.192/02 U/s364/302/201IPC P.SKaviNagar. SukhdevYadav@Pehlwan S/oSh.VishawnathYadav R/oTarnbagla,Kumeha, P.S.Patherwa,Dist.KusiNagar UttarPradesh.

1.

Accused Sukhdev Yadav @ Pehlwan has been tried on a

chargeforoffencesU/s364,302,201readwithSection34IPC.The charge is that accused Sukhdev Yadav along with hiscoaccused Vikas Yadav and Vishal Yadav pursuant to a common intention abductedNitishKatarafromDiamondPalace,ShastriNagarwithin thejurisdictionofpolicestationKaviNagar,Ghaziabad,U.Ponthe
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interveningnight16 /17 February2002withanintentiontocommit his murder. Accused persons then pursuant to their common intention after having abducted victim Nitish Katara committed his murder at around the place near Kurja, Bhulandshahar, UP. All accusedpersonspursuanttotheircommonintentiontheninorderto destroy/disappearanceofevidenceagainstthemwithanintentionof screening themselves, they removed all signs of identification includingclothesofthebodyofthevictimandputthebodyonfire. Accordingly accused persons committed offences U/s 364/302 & 201/34IPC. 2. TheprosecutioncaseisthatdeceasedvictimNitishKataraand

th

th

other prosecution witnesses namely Bharti Yadav (PW38), Bharat Diwakar(witnessgivenupbytheprosecutioninthepresenttrialvide statementoftheSpecialPublicProsecutordated6/7/2007butthen examined as PW25 in a trial earlier held against accused Vikas Yadav and Vishal Yadav), Gaurav Gupta ( witness given up by prosecutionvidestatementdated10/7/2007butexaminedasPW26 in a trial held against accused Vikas Yadav and Vishal Yadav), Shivani Gaur (PW7) were batchmates at Institute of Management and Technology, Ghaziabad during the year 19992000 and were closefriends. ItisfurthercaseofprosecutionthatdeceasedNitish
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KataraandBhartiYadavbecameclosefriendsandtheirfriendship ratherdevelopedintoaloveaffair.BhartiYadavistherealsisterof accusedVikasYadavandcousinsisterofaccusedVishalYadav. Itisfurthercaseoftheprosecutionthatthefriendshiptoanextentof loveaffairbetweenBhartiYadavanddeceasedNitishKatarawasto thedislikingofthefamilymembersofBhartiYadav.Theincidentof thepresentcaseistheoccasionoftheweddingofShivaniGaurand this wedding of Shivani Gaur nee Shivani Arora (PW7) with Amit Arora (PW6) took place on intervening night of 16 /17 February 2002 at Diamond Banquent Hall Ghaziabad. There was a little controversy and rather nodispute inthe fact that deceased Nitish Katara attended this wedding on that wedding site. According to prosecutioncaseaccusedVikasYadavandVishalYadavalongwith presentaccusedSukhdevYadav@PehlwanabductedNitishKatara fromthatweddingspotandtheycommittedmurderofthedeceased andthenputhisbodyonfire. 3. Anunidentified bodywhich later on cameto be identified as
th th

bodyofdeceasedNitishKatarawasnoticedbyaPWVirenderSingh on 17/2/2002 at around 9.30 a.m near Sikarpur Railway Crossing Kurja,Bulandshehar,U.P. Thedeadbodywasseizedbythelocal police and was got subjected to postmortem on 18/2/2002. This
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autopsyonthebodyofthevictimwasconductedbyDr.AnilSinghal (PW18inthepresentcasewhosetestimonyearlierrecordedasPW 3inthetrialheldagainstVikasYadavandVishalYadavwasadopted andacceptedassuchbybothsides).Asperthatpostmortemreport Ex.PW3/1 cause of death was opined as coma as a result of antemortemheadinjuryandburnsonthebodywere reported as postmortem. On21/2/2002thebodywasidentifiedbySmt.Neelam Katara(PW10motherofthedeceasedaswellbyNitinKataraPW9 the brother of the deceased.) The identity of the deceased was furthergotascertainedandconfirmedthroughDNAandfingerprint testing and witnesses on that point were Dr.Sanjeev Lalwani, AssistantProfessorAIIMS,NewDelhiPW15,PW16ASIChetRam, Finger Print Expert, Finger Print Bureaue Malviya Nagar, Delhi, Dr.T.D.Dogra, AIIMS Delhi PW17 (Statement of these three witnessesrespectivelyasPW10,PW2&PW8asrecordedduring earliertrialagainstVikasYadavandVishalYadavwasacceptedby bothsidesinthepresentcase). Infactlddefencecounseldidnot raise the issue of homicidal death of victim Nitish Katara and his identityestablishedthroughabovestatedprosecutionwitnesses. 4. According to prosecution case prosecution witness Bharat

Diwakar then residing in Bhopal came to attend the wedding of

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ShivaniGaurandreachedtheresidentsofdeceasedNitishKatara at7ChemsfordRoad,NewDelhi.InfactBharatDiwakarandNitish Katara attended a prewedding ceremony held on 15/2/2002 also which was held at Shivani Gaur's place at Ghaziabad, the ceremony/functioncalledladysangeet. On16/2/2002,accordingto prosecutioncasedeceasedNitishKataraandBharatDiwakarleftfor the wedding site from Nitish Katara's residence Chemsford Road, Delhi at around 9.30 p.m and they reached the wedding site. Deceased Nitish Katara was abducted from that wedding site ''DiamondPalace''ataround11/11/30p.m. BharatDiwakarfinding NitishKataranotpresentintheweddingsitefinallyleftthesitealone andreachedresidenceofNitishKataraatChemsFordRoad,Delhi atlatepastmidnight. Smt.NeelamKataramotherofdeceasedgot worriedforhersonnotreachinghomeandfoundherselfunableto contactdeceasedonhismobileasitwasbeingrespondedswitched off,shehavingcontactedBhartiYadavtofindoutanyclueregarding whereabouts of Nitish Katara finally sensed a foul play and along with Bharat Diwakar she reached police station Kavi Nagar on 17/2/2002andlodgedareportandtheFIRofthepresentcaseU/s 364/34IPCcametoberegisteredandthepolicecameintoaction with investigation taken up by Inspector Anil Samania (PW22)
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(examined as PW35 in the trial against Vikas Yadav and Vishal Yadav) 5. According to prosecution case accused Vikas Yadav and

Vishal Yadav were found absent from their residence and absconding. Investigating officer obtained arrest warrants against themandrathergotproceedingsU/s82/83CrP.Cinitiated. Both those accused namely Vikas Yadav and Vishal Yadav were apprehended on23/2/2002 byDabra M.P. Police. They were got producedbeforethecourtofCJMGhaziabadthroughtransitremand on25/2/2002. Theirinterrogationledtothosetwoaccusedhaving volunteered a confession/disclosure. In that confession they were alleged to have named present accused Sukhdev @ Pehlwan as theiraccomplice(butonlybymentioningthisaccusedasPehlwan). Recoveriespursuanttothedisclosuregivenbythosetwoaccused were effected which comprised the weapon of offence a hammer, wrist watch which deceased had on his person at the time of incident. (all these aspects concerning accused Vikas Yadav and Vishal have been discussed and analysed in the judgment dated 28/5/2008wherebybothofthemwereheldguiltyandconvictedU/s 364/302&201/34IPC). 6. AfterthearrestofaccusedVikasYadavandVishalYadavand
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afterthenameofthepresentaccusedasPehlwanhavingfiguredin the confessions given by those two accused and the prosecution witness Bharti Yadav examined during investigation also having spokenpresenceofSukhdevYadav@Pehlwanattheweddingsite thattheinvestigatingofficertookupthesearchforaccusedSukhdev Yadav but then accused was found absconding and was got declaredaproclaimedoffenderinthemonthofMarch2002. Asa consequenceofexecutionofproclamation,someofmovableassets ofaccusedavailableinhisnativeplaceinDistrictKushiNagar,U.P in village Tarnuwa were also attached. A fire arm gun licence of accused was also got cancelled but still accused remained abscondingtillafteraboutthreeyearsi.eon23/5/2005thataccused was apprehended by the police officials from police station PateherawaDistrictKushiNagar,U.Pwhereinaccusedhappenedto indulge in a firing on the police and tried to escape but he was arrestedandacriminalcaseU/s307IPCandunderArmsActwas gotregisteredasFIR56/05inthatplace.Wheninterrogatedbythat police, accused was alleged to haveconfessed hisinvolvement in thepresentmurdercase. Accusedwasaccordinglyarrestedinthe present case and he confessed his involvement in the murder of deceased Nitish Katara along with other coaccused Vikas Yadav
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andVishalYadav. Earliertheinvestigatingofficerclaimedtohave recordedstatementofcertainprosecutionwitnesseswhohadseen deceasedNitishKatarainthecompanyofaccusedpersonsandthat circumstance is being pressed as deceased last seen alive in the company of accused persons and then the dead body of the deceased was recovered. Witnesses on this circumstance of last seen were Bharti Yadav, Ct.Satinder Pal Singh PW10, Ct.Inderjit PW12. Thesetwoconstablesclaimedthatwhilepostedinpolice stationKaviNagaron16/2/2002theywereondutyonacontrolroom vehicleNo.Chetak13andtheyhadparkedtheirvehicleatTpoint near Diamond Palace Banquet Hall in order to keep a watch and checkthevehiclesgoingoutoftheDiamondPalace. Accordingto prosecution case during vehicle checking these witnesses saw deceased Nitish Katara in the company of accused persons in a vehicleTataSafariataround1212.30midnight.Anotherwitnesson thecircumstanceoflastseenwasAjayKumarKataraPW14who claimed to have seen deceased Nitish Katara in the company of accused persons in Tata Safari vehicle on intervening night 16/17.2.2002ataround12.30a.mnearHapurChungiandthereafter inthenext day morning deadbodyofthe deceased Nitish Katara wasspottedwithinthatareaofHapurChungi/RajNagar. Another
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incriminatingcircumstanceprosecutionpressedagainstthisaccused inthetrialwasthatacallhadbeenmadeonthemobilephoneof deceased at 1.11 a.m by Bharat Diwakar and the cellular ID of deceasedmobileshowedpresenceofmobileinRajNagaronthat pointoftimethespotwherefinallythedeadbodyofthedeceased wasfoundwaswithinthatRajNagararea. 7. WhenpresentaccusedSukhdevYadav@Pehlwanwasfound

abscondingothertwoaccusedVikasYadavandVishalYadavwere charge sheeted and put on trial and by the time present accused SukhdevYadavwasarrestedinthiscaseinMay2005,thetrialofthe presentaccusedwassegregatedfromthetrialofothercoaccused. AccusedVikasYadavandVishalYadavstandconvictedofcharges againstthem. 8. Prosecution case rests on circumstantial evidence.

Incriminating circumstances pressed in this trial against accused Sukhdevare, (i) Themotivesoughttobepressedagainstpresentaccusedisthat VikasYadavandVishalYadavhadastrongmotivetoeliminate deceasedNitishKatarabecauseoftheirdislikingofhisloveaffairs with sister of Vikas Yadav and accused Sukhdev Yadav associated himself with Vikas Yadav and Vishal Yadav in that
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motiveashewasemployedandworkingintheliquorshopbeing runasafamilybusinessofaccusedpersons. (ii)DeceasedNitishKataraseeninthecompanyofaccusedpersons andtheywerelastseentogetherinlatehoursinthenightofthe incident and soon thereafter dead body of Nitish Katara was discovered. (iii)Conduct of present accused when found absconding after the incident. 9. It has been argued from prosecution side that with the

conviction of Vikas and Vishal in this crime the incriminating circumstanceofmotivestooddulyestablishedwhichshouldbetaken into account once the incriminating circumstance of last seen is foundestablishedagainstpresentaccused.Itisarguedthatthereis areliableandacceptableevidenceonthecircumstanceoflastseen wherebythepresenceofdeceasedNitishKatarainthecompanyof accusedpersonsincludingaccusedSukhdevcanbefoundtohave been duly proved and established then present accused Sukhdev Yadav couldbetaken tohaveassociatedhimself withcoaccused VikasYadavandVishalYadavinthatmotivealso. 10. Ithasbeenfurtherarguedfromprosecutionsidethatconviction

of accused Vikas Yadav and Vishal Yadav in this case is itself a

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strongcircumstancetoholdthisaccusedSukhdevYadavwasalso involvedinthecommissionofthisoffencewhosenamehadfigured attheearliest.LdSpecialPublicProsecutorMr.B.S.Joonsubmitted inhisargumentsthat, 1. AccusedSukhdevYadav@Pehlwanwasworkinginliquorshop in Bulandshehar, U.P which belonged to D.P.Yadav, father of accusedVikas Yadavandaccused admitted thisfact inhis313 Cr.P.Cstatement,thefactwouldsupporttheprosecutioncasethat accused Sukhdev Yadav associated himself in the motive with othertwoaccused. 2. AccusedSukhdevYadavwasseenneararoundDiamondPalace theweddingsiteandthefacthasbeendeposedbytwoconstables whowereindutynearbythatweddingsite. 3. AccusedSukhdevwithcoaccusedpersonswasagainseenalong withvictimdeceasedNitishKataranearHapurchungi,Ghaziabad ataround12.1512.30midnightbyPW14AjayKatarawhenthey allwereseentravellinginavehicleTataSafariontheintervening nightoftheincident. 4. AccusedSukhdevabscondedaftertheincidentofthiscaseandhe didnothaveanyexplanationforhisconductofabscondance.His fireArmlicencefordoublebarrelgunwasgotcancelledandhedid
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notsurrenderthefirearmandkeptevadingthepolice. Whilein abscondence his movable assets in his native village were got attached and it supported the prosecution case that conduct of accusedinabscondingwaswellwithinhisnoticeandknowledge and this conduct of accused in light of the above incriminating circumstances was to be considered as a link in a chain of incriminatingcircumstances. 5. Itisfurtherarguedthataccusedtookafalsepleainhis313CrP.C statementandsuchafalsepleacouldbetreatedasadditionallink inthechainincriminatingcircumstances. 6. Lastly LdSpl.PPargued andsubmitted thatothertwoaccused hadbeenconvictedonthesamesetofevidenceandtherewasno reasonorgroundtodifferwiththefindingsrecordedintheearlier judgment. 11. CounselMr.KaushikDeyrepresentingthedefactocomplainant

Smt.Neelam Katara placed on record his written submissions / arguments. It has been submitted and argued that motive in this crimestandsconclusivelyproved.Theincriminatingcircumstanceof deceased last seen in the company of accused persons has also beendulyprovedandestablished.Itisfurtherarguedthattherewas somedelayinrecording161Cr.P.CstatementofwitnessAjayKatara
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butthendelayhasbeendulyexplainedbythewitnesshimselfandld counselrelieduponjudgmentreportedas2003(12)SCC679which isapropositionthattherewasnosetruleofanaturalreactionbya person. Everypersonwouldreactinhisownwayandinwhatway witnessshouldreactcouldnotbepredicted.ItwasarguedthatPW 14hadseendeceasedinthecompanyofaccusedpersonsonthe intervening night of the incident of this case and having come to knowfrommediareportsthatNitishKatarawhomthewitnesshad seen in the company of accused persons had been murdered, witnessifthoughtofreportingthefacttothepolicewithsomedelay thenhisevidencewasnottobedisbelievedmerelyforthereason that he reacted in a particular manner. It has been argued that wheredeceasedwasinthecompanyofaccusedpersonsandnext daymorninghisdeadbodywasspottedneararoundtheplacewhere deceasedwas seen inthecompanyofaccused then onusshifted uponaccusedpersonstoexplainastowhenandwheretheyparted companywiththedeceasedandinabsenceoftheonusdischarged, aconclusiveinferenceofdeceasedmurderedbyaccusedpersons couldbedrawn. LdcounselrelieduponSupremeCourtjudgments onthispointreportedas2002(8)Supreme1,2006(X)SCALE369 and2006(XII)SCC254.Ithasbeenfurtherarguedthatthepleaof
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alibiwaspleadedasdefencebyaccusedinhis313CrP.Cstatement butifhefailedtosubstantiate,anadverseinferencewastobedrawn andinsupportofthisargumentldcounselreliedupon1981(2)SCC 166,JT1991(2)SC190,1997(4)SCC496,2003(1)SCC259& 2002(7)SCC157and2004(X)SCC786. 12. Ithasbeenarguedthatevidenceofthepoliceofficialscould

notbediscardedanddisbelievedparticularlyintheabsenceofany materialtosuggeststhatevidencewastargetedtofalselyimplicate accusedpersons(2007(1)AD(DHC)534).Onapropositionoflaw thatiftherewassomedefectiveinvestigationtheprosecutioncase was not necessarily to result in an acquittal, it is argued that defective investigation required an extra cautious approach by the court forevaluating the evidence (2003(2)JCC960, 2003Crl.L.J 844). 13. Ld defence counsel Mr.Sushil Bajaj besides oral arguments

andsubmissionsalsofiledhiswrittenarguments.Thesearguments of ld defence counsel will be referred to when the prosecution evidenceinthiscaseistakenupforitsexaminationandanalysis. 14. Inall23prosecutionwitnesseshavebeenexamined. Infact

witness Bharti Yadav appeared asaprosecution witness and was examinedwhenothertwoaccusednamelyVikasandVishalYadav

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werebeingtriedinthiscasealsothoughtheirtrialstoodsegregated fromthetrialofthepresentaccused. ExaminationofBhartiYadav was taken up on 19/11/2006 and it was recorded when present accused Sukhdev wasalsopresent inthiscase with hisadvocate Sh.SushilBajaj andevidence ofBharti Yadavcontinuedandwas concludedon30/11/2006.CertifiedcopyofthatstatementofBharti Yadav is part of the judicial file record in this case. Original statementofBhartiYadavformspartofthejudicialfilerecordagainst VikasYadavandVishalYadav.BhartiYadavwastheonlycommon witness examined against all three accused whereas rest of other evidence has been examined separately against this accused SukhdevYadav. Abriefaccountoftheevidenceinthistrialisas below: PW1 is a witness Yashoman Tomar and his evidence is restricted to the fact that he being friend of Gaurav Gupta and through Gaurav Gupta he had met Nitish Katara, Bharat Diwakar whiletheyallwerepursuingtheirMBAatIMTGhaziabad. witness deposedthaton15/2/2002GauravGuptacalleduponthiswitness from Faizabad that he was to attend a wedding on 16/2/2002 at GhaziabadandrequestedthiswitnesstopickhimupfromNewDelhi RailwayStationandtodrophimtoGhaziabad.Accordingly,witness
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deposed, he picked up Gaurav Gupta from New Delhi Railway Station at 10 p.m on 16/2/2002 and took him to Ghaziabad and dropped him at Diamond Palace thewedding site. Gaurav Gupta thentookthecarofthiswitness. Witnessfurtherdeposedthathe washoldingamobilephone9811220691atthattimeandthatphone wasusedbyGauravGuptasoonhereachedDelhitocallthemobile phoneofNitishKatara. 15. Witnessfurtherdeposedthatonthatnightof16/2/2002while

witnesswasatIMTGhaziabad,ataround12.30midnighthegavea callonthemobilephoneofBharatDiwakartoconveyamessageto GauravGuptathattheyweregettinglateasthewitnesswastogo backtohishomeBharatDiwakarwasatDiamondPalaceatthattime andrepliedtothiswitnessthathewouldbeaskingGauravGuptato goback.Witnessthenwenttothemarriagesiteandthereagainhe gaveacallonthephoneofBharatDiwakarandGauravGuptathen cameoutandtheydrovetoNoida. 16. Witness further deposed that on 17/2/2002 he received a

phone call from Bharat Diwakar who wanted to speak to Gaurav Gupta but then Gaurav was in sleep and witness asked for any message from Bharat Diwakar. Bharat Diwakar told witness that NitishKatarawasmissingandaccordinglythewitnessgotGaurav
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GuptawokeupandgothimonthelineandGauravandDiwakarhad atalk.ThereafterthiswitnessalongwithGauravwenttothehouse ofNitishKataraintheeveningandtillthattime,witnessdeposed, family of Nitish Katara had no information about whereabouts of NitishKatara.GauravGuptathenwentbacktohisplaceofworkon next day and the witness dropped Gaurav Gupta at New Delhi RailwayStation. 17. Counsel for accused Sukhdev did not cross examine this

witness.Accordinglytestimonyofthiswitnessbroughtonrecordthe fact. 1. Gaurav Gupta attended the wedding at Diamond Palace on 16/2/2002wherehereachedbyaround10.30p.mandcameoutof thatweddingsiteataround12.30midnight. 2. Inthenextmorningon17/2/2002acallwasreceivedthat Nitish Katarawasfoundmissing. 18. PW2istheowneroftheweddingsiteDiamondPalaceandhe

deposed the fact that banquet hall was booked for marriage of ShivaniGauron16/2/2002andtheweddingwasattendedbyaround 500/600 guests. Witness admits in cross examination that the weddingsitecomprisedahallandanopenlawn. PW3 is a police official who recorded the FIR of this case. On
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17/2/2002 at around 11.15 a.m, witness deposed, Neelam Katara cametothepolicestationandgaveawrittencomplaintandonthe basisofthatcomplaintherecordedFIRNo.83/02foroffenceU/s364 IPC. Witness proved that complaint as Ex.PW1/1 and an endorsementEx.PW1/Amadebythiswitnessonthatcomplaintwith hissignaturesandhealsoprovedFIRasEx.PW1/2.D.DNo.12was recorded regarding this FIR andheproved its copyasEx.PW1/3. Thereisnocross examinationonthewitnessandaccordinglythe factstoodprovedthatFIRwasregisteredat11.15a.mon17/2/2002. 19. PW4&5arethewitnessesconcernedwithvideographyand

photographs recorded during the wedding ceremony. Witnesses were basically concerned with accused Vikas Yadav and Vishal Yadav as these twoaccused wereappearing invideographyand photographswhichprovedtheirpresenceinthebanquethallduring thiswedding.Infactitwasanadmittedcaseofthosetwoaccused personsthattheydidattendthatmarriagebuttheirdefenceintheir trialwasthatinfacttheyhadleftthatBanquetHallmuchpriortothe allegedtimeofabductionofdeceasedNitishKatara.Thatdefenceof accusedpersonshasbeendealtwithintheirjudgment. 20. PW6&7arethecouplewhogotmarriedon16/2/2002inthat

wedding. PW6thegroomAmitAroradeposedthatmarriagewas
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attendedbyVikasYadavbrotherofBhartiYadavandVishalYadav whom the witness however did not know prior to that occasion. Witness however deposed that marriage was attended by Nitish Katara, Bharat Diwakar, Gaurav Gupta, Vipin, etc etc who were friendsofthebrideShivaniGaurneeShivaniArora. 21. This witness PW6 further deposed that on the next day

morning at around 8.30 or 9 a.m police came to his house and questioned him whether Vikas and Vishal had attended that marriage. Bharat Diwakar was in the company of the police. WitnesswastheninformedthatNitishKatarawasmissing. Police inquired from the witness as to where from the photograph and videographyrecordingofthemarriagehadbeenarranged. 22. Witness then deposed that police asked this witness if the

witness had seen Vikas Yadav and Vishal Yadav leaving that weddingsitewithNitishKataraandthewitnessrepliedinnegative. On this point witness was got declared by Ld Addl. PP and was confronted with his 161 Cr P.C statement Ex.PW6/A but witness refutedtohavegivenanysuchstatementorratheranystatementof this witness having been recorded by the police. Healso refuted suggestionofLdAPPifhehadbeenwonoverbyaccusedandthus failing to depose the above fact. Though witness was cross
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examined by ld defence counsel Sh.Sushil Bajaj but no relevant materialcouldbereferredtobyLddefencecounselfromthiscross examination. 23. PW7 is Shivani Arora. She deposed about Bharti Yadav,

NitishKatara,BharatDiwakar,GauravGuptaasherbatchmatesat IMT Ghaziabad though she was studying some different course. Bharti Yadav was rather her classmate since 7 standard. She deposedthatshewasgotmarriedtoAmitAroraon16/2/2002and that wedding was arranged at Diamond Palace. Marriage was attended by all above stated friends and rather from the side of Bharti Yadav her entire family except her father Sh.D.P.Yadav attendedthatmarriageandthosefamilymemberscomprisedBharti Yadav'ssisterBhavana,theirmother,herelderbrotherVikasYadav and younger brother Kunal Yadav. Vishal Yadav cousin of Bharti Yadavalsoattendedthatmarriage. Shefurtherdeposedthatshe sawNitishKataraalsointhisweddingandsheidentifiedpresenceof allthesepersonsappearinginphotographsEx.PW6/2&3whichhad beenrecordedduringthismarriage.ShefurtherdeposedthatNitish KataraandBhartiYadavwerefriendsastheyallwerefriends.She thenspecificallydeposedthatpolicehadnotrecordedherstatement andshewasonlyinformedbyherhusbandthatpolicehadvisited
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theirhousewithBharatDiwakarasNitishKatarahadnotreturned home.Shedeposedthaton4/3/2002shecametoknowthatNitish haddied.InhercrossexaminationtakenupbyldcounselSh.Sushil BajajforaccusedSukhdevwitnessdeposedthatVishalandVikas Yadav had come to meet her on the dias of the wedding site at around10.30p.mandimmediatelythereaftertheyleft. 24. LddefencecounselarguedthatifVikasandVishalYadavas

per testimony of this witness had left at around 10.30 p.m then it wouldbelietheprosecutioncasethatVikasandVishalYadavalong withpresentaccusedSukhdevhadtakenawaybywayofabduction thevictimdeceasedNitishKatarafromtheweddingsiteataround 11.30p.mor12midnight. This pointhasalreadybeenexamined and analysed in the judgment passed against Vishal and Vikas Yadav. Evenotherwisetheargumentfailedtoconvinceaboutthe saidcontentionasthecourtquestionwasputtowitnessastowhat did witness mean Vikas and Vishal Yadav leaving immediately. WitnessansweredthatasshewassittingonthediasandVikasand VishalYadav cameonthediasandextended their wishestoher, photographs were clicked and husband of the witness then asked themtotakedinnerbuttheytoldhimthatwereinhurryandleft.To anothercourtqueryifwitnesswasawareastowhentheyleftthe
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Banquethall,witnessansweredignorancesinceshewasthereon thedias. Accordinglyfromthisevidenceitcouldnotbetakenthat VikasandVishalYadavlefttheBanquethallitselfbyaround10.30 p.m. 25. PW8RohitGauristhebrotherofthebrideShivani. Witness

deposedthatVikashadattendedthisweddingandwitnessspotted VikasYadavat11p.m. HefurtherdeposedthatVikasYadavwas accompaniedbyanotherpersonwhowastallandfairbutwitnessdid notrecallhisname. Policecametohouseofthiswitnesswithan information that Nitish was missing and they were inquired about. Witnessfurtherdeposedthatfrommediareportshecametoknow thatNitishhaddied. 26. PublicProsecutorfoundwitnessnotadheringtohisearlier161

Cr P.C statement and accordingly with the permission from court Ld.Special PP crossexamined the witness. Witness denied suggestionifpolicerecordedhisstatementorthathestatedtothe police that he saw Bharat Diwakar, Nitish Katara, Gaurav Gupta takingfoodataround12midnightwhenVishalcameclosetoNitish Katara,hadaconversationwithhimandtookNitishKataraoutofthe DiamondPalacei.eweddingsite. Hefurtherrefutedsuggestionif Vikas Yadav was there present outside the Banquet Hall with his
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vehicleandthatVikasandVishalbothtookNitishinthesaidvehicle towards west side or that vehicle was being driven by a driver. WitnesswasconfrontedwithstatementEx.PW8/A.Witnessrefuted if any such statement was given by him to the police that Bharti YadavandNitishwereclosefriendsandthatwasnottothelikingsof familymembersofBhartiYadavandbecauseofthatreasonVikas andVishalYadavafterabductingNitishcommittedhismurder. 27. WitnessdeposedfurtherinthiscrossexaminationbyLd.

Addl.PPthathecametoknowregardingarrestofVikasYadavonly frommediareporting. Witnessassertedthatsincehedidnotknow VishalandVikashadatalkwithNitishduringthatmarriageandthus therewasnooccasionforhimtogoandtellpolicethatVishaland Vikas did not have any talk with Nitish in that marriage function. FinallyaquestionwasputtowitnessbyLd.Addl.PPthataccused Sukhdevfacingtirlainthepresentcasewas,infact,thedriverofa vehicle Tata Safari wherein accused Vikas and Vishal had taken victim deceased Nitish alongwith and the witness replied since he had not gone out of the wedding site i.e. Diamond Palace so he could not say as to what happened outside that Banquet Hall DiamondPalace. Defencecounseltriedtoimpressuponthiscourt thatabovesuggestiontothewitnesswhichmusthavebeenputin
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thiscrossexaminationinaccordancewithhis161CrPCstatement wascontrarytotheprosecutioncaseitself. Counselsubmittedthat prosecution case rather is that this accused Sukhdev was in the vehicleTataSafarioccupyingthebackseatinthevehiclewhereasit hasbeensuggestedtowitnessthathewasdrivingthevehicle.Ld. Addl.PPcounterarguedonthispointthatthesuggestionmighthave beenaninadvertenceanditshouldnotbetakenasafactorapoint todemolishtheprosecutioncase.Thispointofargumentshallagain bedealtwithwhenthiscourttakesuptheincriminatingcircumstance of victim deceased Nitish Katara last seen in the company of accusedpersons.Nothinghascomeinthetestimonyofthiswitness favourably to the prosecution except an uncontroverted fact that VikasYadavdidattendthisweddingandwitnesssawhimpresentin this function at 11 p.m. Ld. defence counsel didnot take up any crossexaminationofthiswitness. 28.PW9NitinKataraisthebrotherofdeceased.Thiswitness wasinPune,Maharashtraonthedateoftheincidentofthiscase and on being informed from his house about the incident witness claims that he called mobile phone of Bharti Yadav. Witness deposedthathecalledBhartiYadavon17/2/2002ataround7.30/8 p.mandsheappearedupsetandtoldthiswitnessthatshehadlast
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seenNitishwithVikasandVishalYadav.Theanotherrelevantfact deposedbythewitnessisthatashereachedhomeinDelhihefound that the wrist watch make ''Espirit'' and mobile phone Blue Eye Samsung which belonged Nitish werenotthere inthehouse. He furtherdeposedthatthewristwatchhadinfactbeengiftedbyBharti toNitish. Hethereafterdeposedregardingsomeemailetcetc. In cross examination witness admitted that in his statement to the police he did not state that when he called Bharti Yadav on 17/2/2002sheappearedquietupset. Healsoadmittednottohave statedinhispolicestatementthatBharatDiwakarhadtoldhimthat on the night of the incident of this case a person whose name Bharat Diwakar came to know as Vishal Yadav had called Nitish outside. Even otherwise such a statement would have been only hearsay. Hefurtheradmittedincrossexaminationthathedidnot statetothepolicethathisbrotherandBhartiYadavweremadlyin lovewitheachotherandwantedtogetmarried.Hewasconfronted withhispolicestatementEx.PW9/DAwhichmentionedonlythattwo wereveryclosefriends. 29. PW10 is Ms.Neelam Katara, mother of deceased Nitish

Katara.HerevidenceisagainfocusedonfactsthathersonNitish while studying in IMT Ghaziabad had become close in love with
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BhartiYadav.Shedeposedthatthoughshewasnotinfavourofthat marriagebutherchildrenwerewellawarethatiftheytookadecision thenshe(witness)wouldnotgoagainstthat. Shefurtherdeposed that from Nitish she came to know that Vikas and Vishal were opposedtothatrelationshipbetweenNitishandBharti.Herevidence hasthenproceededonlyconcerningVikasandVishalYadav. She deposedthat whenBharatDiwakaralonereachedherhouseafter attending marriageandNitishhadnotaccompanied him,onbeing askedBharatDiwakartoldherthatNitishwouldbecomingwithsome oneandsinceNitishdidnotturnuptillnextdaymorning,shecalled mobilephoneofBharti. ShedeposedthatsheaskedaboutNitish and Bharti replied that she was also worried and was trying to contacthimasNitishhadleftalongwithVikasandVishalYadavfrom marriage party. Witness also called D.P.Yadav, father of Vikas Yadav to know whereabouts of her son Nitish and D.P.Yadav admittedthathetoohadheardthathissonandnephewhadtaken away Nitish but then he told the witness that assoon hegot any information he will inform her. Witness further deposed that she againcalledBhartiandtoldherthatshewouldbeapproachingpolice andBhartitoldhertoapproachthepolicesaying''HoneDounkiladki kibadnamiaapkokyapataaapkebetekesaathwokyakarrahey
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hongey.''Witnesshasthendeposedthatshewenttopolicestation Kavi Nagar U.P and lodged report and on 21/2/2002 on being informed by police that she went to mortuary Ghaziabad and identifiedbodyofher sonNitish. Witnessalsodeposedregarding DNAproceedingslaterontakenatAIIMSforascertaintheidentityof thedeceased. 30. Entiretestimonyofwitnesswas thusregardingrelationship betweenNitishandBhartiandtheninvolvementofVikasandVishal inthisincident. Herevidencehasbeendiscussedatlengthinthe judgment whereby Vikas Yadav and Vishal Yadav have been convicted. As regards present accused Sukhdev all this witness deposed is that during investigation and from media she came to knowthatthirdaccusedSukhdevPehlwanhadalsobeennamedas a culprit and the police was looking for him. Besides cross examinationonthefacts deposedbythewitnessevenconcerning Vikas and Vishal Yadav, ld defence counsel took up cross examinationonthiswitnessonthepointandaspectthatancestorsof husbandofwitnesslivedinavillageBamroliKatarainDistrictAgra, U.Pandwitnessadmittedthosefactsbutrefuteddefencesuggestion thatanotherprosecutionwitnessAjayKatarawhohadalreadybeen examined against Vikas and Vishal Yadav was in fact a witness
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introducedbyherandhedeposedatherbehest,hetoobeingfrom villageBamroliKatara. 31. FurthertwowitnessesnamelyCt.SatenderPalSinghandPW

12 Ct. Inderjit are material witnesses concerning present accused Sukhdev Pehlwan as these two witnesses claimed to have seen deceasedNitishKatarainthecompanyofaccusedpersonsinaTata SafarivehiclewhenthesetwoconstablewerepresentataTpoint nearbytheDiamondPalaceBanquethallonthatinterveningnightof 16/17/2/2002andwerecheckingvehiclesgoingtoandcomingfrom Diamond Palace and noticed Tata Safari occupied by accused persons aswelldeceased NitishKataraataround12.30midnight. Their evidence shall be taken up in detail when the incriminating circumstance of ''last seen'' is taken up against present accused SukhdevPehlwan. 32. PW13S.IRameshChander,PW15Dr.SanjeevLalwanifrom

AIIMS,PW16FingerPrintExpert,FingerPrintBureau,PW17Dr. T.DDografromAIIMS,allareconcernedwithDNAtestandfinger print examination for ascertaining identity of the deceased and as seen above Ld.Defence Counsel had little controversy as regards identityofdeceasedNitishKataradeposedthroughthesewitnesses. PW18Dr.AnilSinghalhadconductedthepostmortemonthebody
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ofthevictimandheprovedthatpostmortemreport. 33. PW14 is the star witness of prosecution in this trial namely

AjayKatarawhoisagainawitnessontheincriminatingcircumstance of deceased last seen in the company of accused persons. Testimonyofthiswitnessshallbetakenupwhenthatincriminating circumstanceoflastseencomesupfordiscussion. 34. PW19is aformal police official witness. PW20 isapolice

officialwitnesswhodeposedthatheasapartofateamfrompolice station Pateherawa District Kushi Nagar, U.P had apprehended accusedSukhdevPehlwanon11.2.2005inthenightataround1.30 O'clock and a criminal case under IPC and under Arms Act was registered against accused. He further deposed that accused on beinginterrogateddisclosedthathealongwithcoaccusedpersons hadabductedandmurderedNitishKatara. 35. PW20 is concerned with the arrest of accused Sukhdev

PehlwaninU.Pandaccusedchargesheetedinthatcriminalcase. This witness was cross examined on a point if accused Sukhdev PehlwanwhenproducedbeforeMagistrateafterhisarrest,accused movedanapplicationstatingthereinthathehadbeenpickedupfrom hishouseandshownarrestedfalselyinthatcriminalcasewhenthis accused failed to succumb to the police pressure to become a
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witness against Vikas and Vishal. Witness admitted that in that criminal case registered against Sukhdev Pehlwan all witnesses were only police officials. PW21 S.I Uma Kant Pandey was the investigatingofficerofthatcriminalcaseinU.P. 36. FinallyPW22istheinvestigatingofficerofthiscasenamely

inspectorAnilSomania.ThiswitnessdeposedthataccusedVishal andVikasYadavhadbeennamedinFIRandtheywerearrestedin this case only on 25/2/2002. Those two accused gave a confession/disclosureand thatconfessionrevealedinvolvementof thepresentaccusedthoughhehadbeendescribedonlyasPehlwan. Witnessdeposedfurtherthaton2/3/2002herecordedstatementof Ms.BhartiYadavinthepresenceofherfatheraswellaladypolice officer.StatementofBhartiYadavrevealedrealnameofPehlwanas SukhdevPehlwanandasperthatstatementof BhartiYadavthis accusedSukhdevPehlwanwasalsopresentintheweddingonthe night of the incident. Witness further deposed that Bharti Yadav knewSukhdevPehlwanbythefactandreasonthatthisaccusedhad workedinliquorshoprunbyherfatherinBulandshahar,U.P. 37. Witness further deposed that he took steps to arrest this

accusedSukhdev andlaidtrapinBulandshaharareaon3/3/2002 butthenhecouldnotapprehendaccusedthoughaguaranteecard

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bearingphotographofaccusedwithcompleteaddresswhichwitness identified as Ex.PW22/A1 was recovered and seized. Witness deposedthatteamswereconstitutedtoapprehendthisaccusedand despite several places raided accused could not be apprehended and he was even not available in his native village. Finally this accused was got declared proclaimed offender on 31/3/2002. He furtherdeposedthatproclamationwaspublishedinthenewspaper withhisphotographaswellthroughT.Vtelecast.Thearmlicencefor adoublebarrelgunwhichaccusedwasholdingfromBulandshahar, U.Pwasgotcancelled. 38. On 11/5/2005, witness deposed, that he received a fax

messagefromDewariyaSOofficethataccusedSukhdevPehlwan hadbeenarrestedandaccordinglywitnessgothimproducedbefore CJMGhaziabadandwiththepermissionfromcourtheinterrogated accused and recorded his confessional statement as Ex.PW22/A4 andwiththathechargesheetedaccusedSukhdevPehlwan. 39. PW23isaNodalOfficerfromVodafoneEssarMobileServices

Ltdandthiswitnesswasexaminedbyprosecutionaftergettingan orderonitsapplicationU/s311CrP.C.Thisisinalltheevidence broughtbytheprosecutionagainstthisaccused. 40. Accused when examined U/s 313 Cr P.C he denied the
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prosecutioncase. Hedeniedhispresenceontheweddingsiteon theinterveningnightoftheincident. Hedeniedhispresenceinthe vehiclewhereindeceasedwasallegedtohavebeenabducted. He pleadedadefencethatpolicewantedhimtobecomewitnessagainst Vikas and Vishal Yadav and when he refused to oblige he was falselyarrestedandfalselyimplicated.Accusedexaminedawitness in defence from his native village. Witness Keshwar Singh DW1 deposedthatheknewaccusedSukhdevPehlwan.Hewaswrestler by profession. From 2002 till 2005 accused lived in his village TarnuwaDistrictKushiNagar,U.P.Hefurtherdeposedthathewas arrestedbypoliceafterhehadbeenpickedupfromhishouseinthe villageintheyear2005.Thiswitnesswenttothepolicestationand inquiredfromlocalpoliceofficerastoinwhatoffencehewasbeing arrestedandwitnesswasinformedthatpoliceofficerhimselfdidnot know exactly what was the matter wherein he had been arrested. Another defence witness has beenexamined as DW2whoisthe Nodel Officer Bharti Airtel Ltd. This is the evidence and material wherebythechargeagainstaccusedistobeexaminedwhetherit couldbesaidtohavebeendulyproved. MOTIVE 41. Prosecution had attributed a strong motive to other two
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accused. That motive as an incriminating circumstance against those two accused has been very elaborately dealt with in the convictionjudgmentrecordedagainstthosetwoaccused.Afinding has been recorded on the incriminating circumstance of motive against accused Vikas and Vishal Yadav by referring to evidence andmaterialincludingletterswhichwerefoundtohavebeenwritten andaddressedtodeceasedbyBhartiYadav.Findingsare; ''The perusal of this letter apparently gives a loud and clear message that she was madly in love with the deceased. Giving respecttoherfeelingsIdonotwanttocommentanymoreonthe contents of the letter as it was something too personal to her. However,atthesametimeIcannotrestrainmyselffromobserving thatasperthisletterBharti,withoutNitish,hadnomeaninginher life.Shecouldnoteventhinkoflivingwithouthim.'' 42. Again it has been held that certain letters written by Bharti

Yadavsuggestedthatherfamilymemberswerenotfortheapproval ofrelationshipwhichhaddevelopedbetweenherandNitish. Ithas beenrecordedasafindinginthatjudgmentpage181, ''SabkohappyrakhnahaiHaina? WhichalsoleadstotheinferencethatshehadbeensenttoShimla on her birthday under pressure and she could not celebrate her
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birthdaywithNitishdespitethefactthatshewantedtodoso. Itisalsowritteninheraforesaidletterthat, SabMujhedaratehaisamjhatehaibutitrustyou. Mere trustkokabhitootnaymatdena,iloveyou. ''Theabovereferredcontentsofherlettershowedthatshewas threatened by her family members who did not approve of her relationshipwiththe deceasedandweretrying topersuade herto severeofherrelationshipbutshestilltrustedthedeceasedandwas hopeful. Even in the letter Ex.PW30/C1 she speaks in guarded wordsthatforthelast6monthsshewashopingthingswouldchange frombettertogoodbuttheywereturningfrombadtoworse.'' 43. Finallyitcametobeheldandobservedthatitwasquietlikely

thatMs.BhartiYadavwasastrongheadedwoman/characteristicof her reflects. From her letters and greeting cards sent to the deceased, it appeared she might have refused to be under the control of her brothers. The defence argument that those two accused persons were not aware of that relationship was found unacceptable.Ithasbeenrecordedasafindingthatitstoodproved that BhartiYadav andNitish Katara hadloveaffairandwanted to marryandaccusedpersonshadknowledgeofitandwereaverseto thatrelationship.
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44.

ThesefindingsonmotivearespecificagainstVikasandVishal

Yadav.Presentaccusedhavingsharedmotivewithotheraccused will have to be examined from circumstance that he was in the companyofthoseaccusedwhenvictimdeceasedwasabductedand murdered. Lastseencircumstance
45.

Prosecution is strongly relying on this incriminating

circumstance of deceased last seen in the company of accused persons. Ithasbeenarguedbyld.Spl.PPthatthisincriminating circumstancestandsdulyprovedfromthetestimonyofCt.Satender PalSinghPW10,Ct.InderjeetPW12andfinallyfromthetestimonyof PW14AjayKumarKatara. Itisfurtherssubmittedthatevidenceof thesewitnessgetssupportfromtheevidenceofBhartiYadavPW. 46. Ld. PP argued that this incriminating circumstance of last

seen hasbeenhelddulyprovedandestablishedinthetrial held againstothertwoaccusedVikasandVishalYadavandbothofthem havebeenconvicted. 47. ItisfurtherarguedthatifdeceasedNatishKatarawasseenin

the company of accused persons and then the body of victim/deceased was found and spotted by witness Vireder Singh PW23 ( witness Virender Singh was examined during earlier trial
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againstVikas andVishalYadavandtestimonyofthiswitnesswas adopted by both sides to be taken into consideration as recorded videordersheetdated23.10.07)ontheverynextdayinmorningat around 9:00 AM by the side of a road of his village in a pit withinthejurisdictionofDistrictBulandseharthenintheabsenceof accused persons explaining circumstance as to when, how and wheretheypartedcompanywith deceasedonusshifteduponthe defenceandinabsence of that onusdischarged bythe defence, eventhatsolecircumstanceoflastseencouldbefoundenoughto holdaccusedpersonsresponsibleforthemurderofvictim/deceased NitishKatara. 48. Ld. Defence Counsel Mr. Sushil Bajaj argued that evidence

weighedandanalysedandfindingsrecordedagainstaccusedVikas andVishalYadavonthebasisofevidencecannotbeacceptedas such for the reasons that presence of Vikas and Vishal at the weddingfunctionsitei.e.DiamondPalace,BanquetHallonthenight of16/17.02.2002wasnotinquestionorcontroversyandthecourt whiledecidingtheearliertrialagainstVikasandVishalYadavhad furtherfoundstrongmotiveprovedandestablishedagainstthosetwo accusedpersons,theincriminatingcircumstanceofdeceasedNitish Kataralastseeninthecompanyofaccusedpersonswasexamined
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andanalysedinlightofthosefactsandcircumstancesappearingon recordagainstthosetwoaccusedpersons,thiscircumstanceoflast seen qua present accused Sukhdev alias Pehlwan was to be examinedindependently,disassociatedwithanykindofobservation madeintheearliertrial. 49. Ld.Counselarguedthatprosecutionitselfwasnotsureasto

howitwasprojectingitscaseconcerningSukhdevaliasPehlwan,as to how and in what manner decease was seen and found by witnessesinthecompanyofaccusedpersons.Ld.Counselpointed outthatwitnessRohitGaurPW8,whoisbrotherofthebrideShivani Gaur,whenexaminedduringinvestigationhis161Cr.P.Cstatement suggestedthatSukhdevaliasPehlwanwasthedriverinTataSafari vehiclewhendeceasedwastakenawayandthuslastseeninthe company of accused persons when Vikas and Vishal Yadav were alsothereinTataSafarivehicle.CounselsubmittedthatPW8Rohit Gaurwhengotdeclaredhostileonthepointthathesawdeceased beingtakenawaybyaccusedpersonsasuggestionhasbeenputto thewitnessbyLd.PPthatSukhdevaliasPhewanwasthedriverof TataSafarivehicleinwhichaccusedVikasandVishalhadleftthat weddingsitealongwithNatishKatara.Witnessdeniedanddisputed to have given any such statement to the police and specifically
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answeredthatsincehehadnotgoneoutoftheDiamondPalaceand thushecouldnotsaywhathappenedoutsidetheBanquetHall.The prosecution suggestion itself that witness saw Sukhdev alias PehlwanasadriverinvehicleTataSafariwascontrarytoitsown case as other witnesses examined during investigation and then examinedincourtweresupposedtoputuptheprosecutioncasethat infactdriverinthevehicleTataSafariwasVikasYadavandpresent accusedSukhdevwasthereintherearseatofthevehicle. 50. Ld.CounselfurtherarguedthatwitnessBhartiYadavhasnot

supported the prosecution case and categorically deposed in the present trial that she did not know any person by the name of SukhdevaliasPhelwanandshewasnotawareifanysuchperson wasworkingintheliquorshoprunbyherfather. Counselargued thatwitnesswasgotdeclaredhostile,buthertestimonydidnotatall suggestifshewasreallyhostiletoprosecutionquapresentaccused Sukhdev alias Pehlwan. Other two prosecution witnesses police officials Ct. Satender Pal PW10 and Ct. Inderjeet PW12 had also failedtosupporttheprosecutioncase.Ct.SatenderPalwhatsoever little supported the prosecution it was only by accepting the suggestiongivenbyLd.APPinthecrossexaminationaftergetting himdeclaredhostile.PW12Ct.Inderjeetwasabsolutelyhostileand
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counselsubmittedthatinfactbeforecondemningwitness,whowas police official, hostile to the prosecution case, a serious question mark appeared to the jurisdiction of Investigating Officer in the recording161Cr.P.Cstatementparticularlywherethewitnessfound surprised when confronted with the facts stated in 161 Cr. P.C statementandhedeniedtohavegivenanysuchstatementtothe InvestigatingOfficer. Ld.Counselarguedthattestimonyofthese twowitnesseswascontradictoryandbecameunreliable.Hefurther argued that even their 161Cr.P.Cstatements were recorded after about2weeksoftheincidentandtherewasnoexplanationeitherby thewitnessesorbytheInvestigatingofficerforthatdelayandthus their testimony become vulnerable and defence contentions could not be rejected that those witnesses were planted by the InvestigatingOfficeronlytocreatetheincriminatingcircumstanceof lastseen. Ld.counselplacedrelianceoncertainjudgmentsonthe point of evidentially value of statement of witnesses whose examinationduringtheinvestigationwaswithadelayandtherewas noexplanationforthatdelay. 51. Finally, ld. defence counsel argued, that prosecution witness

AjayKataraonlyonincriminatingcircumstanceofthe''lastseen''was unreliablewitnesswhosepresenceonthespotwhereheclaimedto
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have seen deceased in the company of accused persons was completelyachanceandthushecouldbedescribedtobeachance witness. Therewasalongonemonthdelayinrecordinghis161 Cr.P.C statement which was recorded on 18.03.2002 and explanation given by the witness himself for that delay was unacceptableandtherebythewitnessappearedtobeaplantedone andwasunbelievableandunacceptable. 52. Before we proceed to examine and analyze respective

argumentsandcontentionsitwillbepropertosetouttotheevidence deposedbythesewitnesses. 53. PW10 Ct.Satender Pal Singh is a material witness examined by the prosecution on the incriminating circumstance of ''last seen''. Witness deposed that on 16 /17 February 2002 interveningnighthewithotherpolicestaffhadstationedtheircontrol room vehicle nearby Diamond Palace Banquet hall and were checking the vehicles which were coming from and going towards Diamond Palace. Witness claimed that at around 12.15 O'clock midnight a Tata Safari vehicle came from Diamond Palace side whichwasgotstoppedbyCt.Inderjit.Windowglassesofthevehicle were rolled on half and the witness saw there were 34 persons sittinginsidethevehicle.WitnessidentifiedVikasandVishalYadav
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amongst those 34 persons as they were already known to the witness. He further saw another person wearing red colour kurta insidethevehicle.WitnessthendeposedthataccusedSukhdevwas sittinginthatvehicleonthebackseat. 54.SpecialPublicProsecutorfoundwitnesstohavedeviated from his earlier 161 Cr P.C statement and with the permission of courtAPPcrossexaminedthewitness.WitnessadmittedthatVikas YadavwasdrivingtheTataSafarivehicle. Hewasshownthena photograph Ex.PW6/2 and identified that photograph as the one whichhadbeenshowntothiswitnessbytheIOandthepersonwith redcolourkurta inthatphotograph wasidentified byhimbut then witness volunteered that he was not sure if person wearing red colour kurta sitting in Tata Safari vehicle was the same who was appearinginthatphotograph. 55. Inthecrossexaminationonbehalfofaccusedwitness deposedthathisstatementwasrecordedonthenextdayoraftera dayortwo.Heansweredsuggestionaswrongandincorrectthathe hadnotcometoknowabouttheincidentonnextdaybuton4/3/2002 or i.e what he had deposed in his earlier examination in the trial againstVikasandVishalYadav.Headmittedthathehadnotgiven description of the fourth person present in Tata Safari vehicle.
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Finallydefencesuggestionputtothewitnessandheansweredas wrongwasthataccusedSukhdevwasnotinTataSafarionthatnight orthathewasidentifyingthataccusedonlybythereasonthathe waspresentincourtinthistrial. 56.Lddefencecounselarguedthatwitnesswasunreliable.There wasanunexplaineddelayofmorethantwoweeksinrecordinghis statement during investigation, there were contradictions in his evidence and he was completely contradicted by other constable PW12Inderjit.Ldcounselfurtherpointedoutthatwherethewitness wascrossexaminedbyAPPandonlyinthatcrossexaminationhe proceeded to admit the facts suggested by APP then evidentiary valueofsuchawitnesscouldnotbeacceptedasaboveboardand witnesswastobeheldtobeunreliable. 57.LdAPParguedthatwitnessisanofficialonewhowaspresent duringtheperformanceofhisdutyandthushispresencecouldnot bedoubted.Hesubmittedthatpresenceofthewitnesshasnotbeen questioned in the cross examination. Delay in recording police statementwasonaccountofnocommunicationbetweenthewitness andtheIOasthewitnesshadnotseenanyalarmingfactanditwas theowncaseofdefencethatwitnessbecameawareofincidentof thiscaseonlyon4/3/2002andthusstatementofwitnesscametobe
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recordedon4/3/2002. Hesubmittedthatnomaterialcameinthe crossexaminationofthewitnesstodiscredithistestimony. Ihave appreciatedthesesubmissions. 58. Mere delay in recording statement of witness during investigationmaynotbeagrounditselftodisbelievethewitness.In acaseGunnanaVsStateofAndhraPradesh2008(11)SCALE557 ithasbeenheldthatunlesstheinvestigatingofficerwascategorically askedastowhytherewasdelayinexaminationofwitness,defence could not take advantage therefrom. Admittedly no question has beenputtotheIOastowhyandhowadelayoccurredinrecording policestatementofthiswitness. Asseenabovewitnesswasona dutycheckingthevehiclesandhedidnotobserveanyuntowardor alarmingfactwhichcouldsuggestthatwitnesswasexpectedtoreact inaparticularmanner.Duringinvestigationifthewitnesswasshown the photograph by the IO for getting victim deceased identified whetherseenbythewitnessinthecompanyofsomepersononthat nightoftheincident,thedelayinrecordingstatementofthewitness bytheIOcannotbeconsideredtoaffecttheveracityofthewitness oraffecttheprosecutioncase. 59.Anotherchallengetotheveracityofthewitnesswascertain inconsistenciesinhisevidenceldcounselpointedoutthatwitness
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initiallydeposedthatVikasandVishalYadavweresittingintheback seat of the vehicle and that was contrary the prosecution case whereinVikas Yadav was driving the vehicle and victim deceased Nitish Katara was on the front seat next to driver. Ld counsel submitted that witness having accepted these facts in the cross examination by ld APP then evidentiary value of such a witness shouldnotbeacceptedastoholdthecircumstanceproved.Ihave consideredthisargument.Wehavetokeepitinmindthatsincethe incident occurred in February 2002, this police official witness appearedforevidenceinthistrialinDecember2006i.eaftermore than 4 years. It has been held in Shankara Naik Vs State of Karnataka2008(12)SCALE742thatdiscrepanciesintestimonyof witnesswhoseevidencewasrecordedlongaftertheincident,some discrepancieswereboundtoappear. Questionbeforecourtwould bewhetherdiscrepancieswenttotherootofthefactandseriously affectedthecredibilityofthewitness.Whenexaminedinlightofthe saidlegalprecedentIdonotfindthatdiscrepancypointedoutbyLd defence counsel was a serious one and credibility of the witness stood seriously affected. Witness was very categorical that when TataSafarivehiclewasgotstoppedandcheckedhesawVikasand VishalYadavpresentinthatvehicleandinall34personswerethere
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inthevehicle.WitnesshasdeposedthataccusedSukhdevPehlwan was there inside the vehicle. Defence put to witness in cross examination is only a suggestion that Sukhdev was not in that vehicle. Tomyopinioncrossexaminationonthewitnessfailedto bring out material to cast a doubt in his evidence of the fact that SukhdevPehlwanwastherepresentinthevehicle. 60.ItisamatterofrecordthataccusedVikasandVishalYadav hadbeenfound absent from theirhouse since the incident ofthis case andthey werearrestedinMadhyaPradeshwherefromthey were got brought and arrested in this case. Both the accused mentionednameofthisaccusedSukhdevPehlwan(thoughonlyby mentionedhimas''Pehlwan'')intheirconfession/disclosure.Though suchaconfessionwasinadmissibleinevidencebutthenLdAPPhad a valid submission that such a confessional statement provided a course of action for the investigation to the investigating officer. Therewasnoapparentreasonthatinvestigatingofficeroranybody elsewouldgetthenameofaccusednotedintheconfession.There wasnoanyapparentreasonforadoptinganysuchprocess.LdAPP furtherpointedoutthatprosecutionwitnessBhartiYadavPW38was examinedduringinvestigationinthepresenceofherfatheraswella ladypoliceofficer. IthasbeenspecificallydeposedbytheIOand
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BhartiYadavdidtellinthatstatementthatdeceasedNitishKatara hadbeentakenawaybyVikasandVishalYadavandthisaccused Sukhdev Yadav who used to work in their liquor shop in Bulandshehar.ItissubmittedbyAPPthatthoughBhartiYadavhas not supported the prosecution case for the reasons apparent that othertwoaccusedinvolvedwereherrealbrotherandhercousinand i.e how she found compelled at the cost of upholding the truth to resile against present accused also. Ld APP submitted that evidenceistobeappreciatedinsuchapeculiarbackgroundfactsof thepresentcase. 61.WhensubmissionofLdAPPisconsidereditappearsfrom recordthataccusedSukhdevYadavhadbeennamedascoaccused byaccusedVikasandVishalYadavintheirconfessionalstatement thoughwhichisinadmissibleinevidence. Butobviouslytherewas no apparent reason for name of this accused being mentioned by themastheiraccomplicethentestimonyofconstableSatenderPal Singhprovides acredibilitytotheprosecutiontheorythataccused Sukhdev @ Pehlwan was in the company of accused Vikas and VishalYadavontheinterveningnightofincidentofthiscase. We cannot reject testimony of Ct.Satender Pal Singh as unacceptable andunbelievable. Atthemostwitnessmaybroughtinacategory
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that he is neither wholy reliable nor holy unreliable witness (VadhiveluThevarVsStateofMadrasAIR1957SC614).Thecourt mayseekcorroborationandassurancetosuchevidence. 62TheotherprosecutionwitnessCt.InderjitPW12whowasin thecompanyofCt.SurenderPalduringinspectionandcheckingof the vehicles has completely resiled. He was declared hostile. AccordingtothiswitnessaccusedVikasandVishalYadavandvictim deceased Nitish Katara were seen in two different vehicles which passedthroughtheircheckingpointinanintervalof15/20minutes. This was none of the prosecution case from his 161 Cr P.C statement but witness denied to have given any 161 Cr P.C statement. Ifno161CrP.Cstatementwasgivenbythiswitness. then how come he was aware of the facts of the present case incidentsisnowhereclearfromhistestimony. Awitnesshostileto theprosecutioncaseistobediscardedentirelyunlessthecourtfinds any fact appearing from his testimony as acceptable and reliable. Thiswitnessincrossexaminationonbehalfofaccuseddeposedthat Ct.SatenderPalwassittinginsidetheirvehicleandhadnotcomeout of his vehicle when this witness was checking the vehicles. How come the witness deposed this fact unless he had got himself recorded as a witness to the investigating officer and thereby he
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remainedconsciousoftheincidentofthiscaseandremainedalive toanysuchfactasdeposedincrossexamination.Thiswitnesshad turnedhostileandresiledintheearliertrialagainstVikasandVishal Yadavalsoandhasbeencondemnedintheearlierjudgment. 63.Anotherstarwitnessoftheprosecutiononthiscircumstance of''lastseen''isPW14AjayKumarKatara. Thiswitnessstatedin evidencethatontheinterveningnightof16 17 February2002at around 12.30 midnight he was returning to Delhi from Ghaziabad wherehehadgonetomeethiscovillagerHeadConstableSubhash. He was riding a scooter and as he reached Hapur Chungi, he happened to find his scooter getting broken down. As soon his scooterstoppedontheroadaTataSafarivehiclearrivedfromKavi Nagarside. AccusedVikasYadavwhomthiswitnessknewsince beforeaskedhimtoremovethescooter. Witnessassertedthathe knewVikasYadavashewasaknownpersonalitybeingsonofan M.P in Ghaziabad and he was driving that Tata Safari. Witness furtherdeposedthatsincesomeabusivelanguagehadbeenusedby VikasYadav,itattractedthiswitnesstogoclosetoTataSafaritosee thereasonandhethensaw apersoninredcolour kurtawitha whitecolourshawlaroundshoulderwassittingnexttoVikasYadav. Vishal Yadav was sitting behind that red Kurta person. Witness
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furtherdeposedthatlateronhecametoknowthatredcolourkurta person was Nitish Katara. Witness further deposed that accused SukhdevYadav@PehlwanwassittingbehindVikasYadavinthe rear seat. He further deposed that he knew Sukhdev Yadav as accused used to look after the liquor shop of D.P.Yadav in Bulandshehar and this witness had seen Sukhdev Yadav in the companyofVikasYadavinGhaziabad. Witnessnotednumberof thatTataSafarionapaperslipandsincewitnessfoundVikasYadav beingsonofanM.Pofthatarea,heremovedhisscooterandTata SafariproceededtowardsGhaziabad. 64.Witnessthendeposedthatafter23dayshesawphotoof NitishKataraontelevisionandrecalledthatthepersonseenbyhim inthecompanyofaccusedpersonsinTataSafariwasthatvictim NitishKataraandaccordinglyhedecidedtogotothepolicestation KaviNagar.NameoftheIOasAnilSamaniaalsocametohisnotice and knowledge through television. Witness stated further that he introducedhimselftoIOAnilSamaniainpolicestationKaviNagaron 18/3/2002. PriortothatheattemptedtomeetIOon2nd and12th of March2002butIOwasfoundnotpresentandavailableinthepolice station. HenarratedanddisclosedallthefactstotheIO. Witness duringhisdepositionagainidentifiedvictimdeceasedNitishKatara
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appearinginphotographEx.PW111/5asthepersonwhomhehad seensittinginTataSafarivehicleinredcolourkurta. 65.WitnesswascrossexaminedbyLdAPPonlyonapointthat infactaccusedSukhdevPehlwanpresentinTataSafarivehiclewas infactintherearseatbehindNitishKataraandotheraccusedVishal Yadav intherearseat behindVikasYadavandwitness corrected himselfbyadmittingthosefacts. 66. When cross examined by defence counsel witness was confrontedwithhispolicestatementwiththefactifaccusedVikas Yadav had called any abuses to witness and ld defence counsel submittedthatfactdeposedbywayofimprovementwassufficientto challenge the veracity of the witness that on that cause he was attracted towards occupants of the Tata Safari vehicle and went closetothatvehicle.Counselsubmittedthatiftherewasnoabusive language used by Vikas Yadav then the usual conduct of witness wouldsuggestthathedidnotgotowardsTataSafarivehicleandsee whowereitsoccupants.LdAPPsubmittedthatthough161CrP.C did not specifically mention if any abusive language was used by VikasYadavbutitdidmentionthatuncivilizedlanguagewasusedby accused. Another improvement confronted to witness is the seat arrangementoftheoccupantsofTataSafarivehicleasdeposedby
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thewitnesswasnotthereinhispolicestatement.Witnesswasalso confrontedonthefactifhehadgonetopolicestationKaviNagaron 2 and12 March2002tocontactandmeetIOAnilSamaniabut whowasfoundnotavailable. 67. Another challenge to credibility of this witness inthis cross examinationisthatwitnesshadnotinfactvisitedanysuchpolice official Subhash Chander in U.P police then residing in PAC compound Ghaziabad and thus it was a concocted story by the witnessandbeingachancewitnesshewasunacceptablewhereno othersatisfactoryevidencecameonthefileifthewitnessdidvisita policeofficialSubhashChanderatGhaziabadandthuswasreturning at odd hours in the night and then happened to observe facts as deposedbyhim.Inthiscrossexaminationwitnessadmittedthathe did not know the quarter number of police official Subhash. Ld counsel argued that PAC compound Ghaziabad was a gated and guardedcolonyanditwasnotpossibleforanoutsidertoenterinto thatcolonywithoutpresenceofsuchapersonrecordedontheentry gate.Ldcounselarguedthattheinvestigatingofficerhadexamined Subhash Chander to support and corroborate the fact that this witnessdidvisitSubhashChanderandmovedfromhisresidencein oddnighthours.LdcounselrelyinguponjudgmentsreportedasAIR
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1976SC2032BehlSinghVsStateofHaryana,AIR1998SC2899 StateofPunjabVsSaroopSingh,AIR2004S.C3559ShankerLal VsStateofPunjab,JT2009(11)S.C682JarnelSinghVsStateof PunjabandJT2003(5)S.C70StateofU.PVsPrem&Anr.argued thatwitnessAjayKatarabeingachancewitnessitwasnotsafeto actuponhistestimony. 68. Thiswitnesswasthencrossexaminedonthepointthat

forefathersofthiswitnesswereresidentofvillageBamroliindistrict AgraandthatmostofthepeoplefromthatvillagewereKataraand i.ehowthevillagecametobenamedandknownasBamroliKatara. LdcounselsubmittedthatancestorsofhusbandofNeelamKatara were from the same village and thereby this witness Ajay Katara beingintroducedlateronasafalsewitnesswasaprobabilityand testimony of this witness could not be accepted as creditworthy. Counselsubmittedthatadelayofonemonthinwitnessgoingtothe policetoandintroducinghimselftobeawitnessfurthercreateda serious doubt in his veracity. Ld counsel relied upon certain judgments onthepointofdelayinrecordingstatementofmaterial witness and its effect. Ld counsel relied upon judgment 2007 (4) JCC2980ShankerLalVsState1989SCC649,SunderSinghVs StateofPunjabAIR1992S.C674StateofKarnatakaVsVenktesh,
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1996SCC1028AtulMoleyVsStateofWestBengal,AIR7991SC 1356 Paddy Reddy Vs State A.P and AIR 1986 S.C 593 Pallani SwamiVsStateofTamilNadu. 69. Another fact appearing in the cross examination of the

witness,creatingdoubtonthepresenceofthewitnessonthespot andconsequentlyhisveracity,arguedLdCounselwasthattheroad wasawideonewherethescooterofthiswitnessasstatedbyhim wentoutoforderandthevehicleTataSafarioccupiedbyaccused persons stopped. Counselarguedthatiftheroadwasaround40 feetwideashasbeenadmittedbythewitnesswherehedeposed'' thewidthoftheroadincludingdividerofroadGhaziabadtoDelhiand viceversaisapproximately40feet''. Counselsubmittedthatasa normalnaturalcourseofeventsevenifthiswitnesshappenedtofind his scooter coming to halt, the vehicle of accused persons could havepassedthroughandtherewasnooccasionforaccusedtostop their vehicle and to enter in to any kind of wordly exchange or altercation. 70. Witnessadmitsincrossexaminationthathedidnotpossess anydocumentthathewasresidinginDelhiinBrahampuriasstated by him and that supported the defence contention that he was entirelyachancewitnessLdcounselsubmitted.
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71. Conductofthewitnesswasthenquestionedinfurthercross examinationwherewitnessadmittedthathehadmarriedthrice,his thirdwifewasTanuChaudhryandshetoohadfiledacriminalcase U/s 498A IPC against this witness in the court of Magistrate, Ghaziabad. Another conduct of accused casting doubt in his credibilityasdeposedbythewitnessinhiscrossexaminationisthat though witnessdeposedthatwhilelivinginDelhihewasreceiving threatsfromD.P.Yadavtotheeffectthathewasafalsewitnessand would be killed, but then witness admitted that he left his Delhi address soon after the incident of this case and he shifted his residencetoGhaziabadandGhaziabadareabelongedtofamilyof accusedpersons.Ldcounselsubmittedthatitcouldnotbesaidto beanormalnaturalhumanbehaviourthatwitnessreceivingthreats from a person living in Ghaziabad would shift his residence to Ghaziabad.Finallyasuggestionhasbeenputtothewitnessthathe didnotwitnessanysuchincidentasdeposedbyhimandhewasnot presentonthatspotheclaimedtobeandthewitnessdisputedthose suggestions.Witnessadmittedthatsincetheincidenttill18/3/2002 hedidnotdiscussordiscloseincidenttoanybody. Witnesscame outwithanexplanationthattillhemettheinvestigatingofficerand disclosedtheincidenthehadwitnessed,heapprehendedathreatto
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his life because of desperate nature of the accused persons. Counselarguedthatitwasaconcoctedexplanationbywitnesswhen witnesshimselfshiftedtoGhaziabadfromDelhiafteraboutamonth oftheincident. Witnessadmittedincrossexaminationthathehad obtainedpersonalsecurityfrompolicesince25/4/2002withthecourt ordersandhadbeencontinuingthatsecuritywithhimtillthedateof hiscrossexaminationwasbeingconductedinthiscaseinJuly2007. Ld counsel argued that the alleged threat perception given by the witnesswasafalsityanditreflectedonthecharacterofthewitness and accordingly the witness was liable to be disbelieved and rejected. 72. AstohowwitnesswasacquaintedwithaccusedSukhdev

Pehlwan,witnessdeposedincrossexaminationthatheusedtovisit liquorshoprunbyD.P.YadavinBulandsheharforpurchasingliquor andi.ehowhehappenedtoseeaccused.Witnesswasquestionedif he would visit Bulandshehar to purchase liquor and witness answeredthatwheneverheusedtovisitAgra,onthewaybackto GhaziabadthatliquorshopinBulandsheharfell.Ldcounselargued thathowimprobablethatstatementofthewitnesswouldbethathe wasacquaintedwithaccusedwhenhehappenedtobuyaliquorfrom ashopwhereaccusedusedtowork.
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73.

Ld APP argued that there was no reason to disbelieve

thiswitnessandthiswitnesshasalreadybeenheldtrustworthyand hisevidencehasalreadybeenacceptedwithveryelaborateanalysis intheearliertrialheldagainstaccusedVikasandVishalYadav.He further arguedthat itwasapeculiar case whereaccused persons involvedwereinfluential,accusedVikasandVishalYadavbeingfrom the family of D.P Yadav and nobody would dare to appear and depose. Hefurthersubmittedthatevidenceofthiswitnessistobe appreciatedinlightofthetestimonyofPW10Ct.SatenderPalwho hadidentifiedtheaccusedpersonswhentheywerefoundmovingin aTataSafarivehicleandvictimdeceasedNitishKatarawasalsoin theircompany.Ihaveappreciatedthesecontentions. 74. Firstthecontentionandargumentoflddefencecounsel

thatAjayKatarawasachancewitness.WitnessAjayKataracould besaidtobeachancewitnessashehappenstobepresentatodd hours on a place where in a normal course he would not be. However,testimonyofsuchawitnessisnottobediscardedonlyby thatreason.Ifthecourtfindsevidenceofsuchawitnessacceptable then testimony of witness cannot be thrown out (Sarvesh Narain Shukla2007(12)SCALE290).Itisamatteroffactthatinvestigating officer did not join police official Subhash Chander in his
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investigation. PresenceofAjayKataracouldhavebeensupported bySubhashChanderbutthencertainlyevidencecannotberejected merelythatinvestigatingofficerfailedtoexaminethataspectofthe matter. 75. Conductofthewitnessissoughttobepointedoutthathe

would go close to the vehicle which accused persons were occupying merely by a reason that scooter of the witness had stopped inthemiddleoftheroad. Ifitsohappenedthataccused persons foundanobstacleontheroadandhadtoputabraketo their vehicle and if they happened to use any kind of uncivilized languagethenthewitnessgoingclosetothevehicleoftheaccused wasausualhumanbehaviourreactionanditcouldnotbedescribed tobeanabnormality. Sameisthereasoningthataccusedpersons couldhavepassedthroughevenifscooterofthiswitnesshappened tocomeinabrakedowncondition.Thoughaquestionhasbeenput tothewitnessasaboutthewidthoftheroadbutitisnoneofthe caseofaccusedputincrossexaminationtothewitnessthatvehicle of accused could have passed through without there being any occasionfortheirvehicletostopandenterintoawordlyexchange. Hadtherebeenanysuchspecificcategoricalquestiontothewitness, he would have answered it but then in the absence of any such
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question put to the witness it is not permissible to assume that accused persons would have passed through the witness without providinganysuchopportunityforhaltingtheirvehicle. 76. Delayofonemonthinwitnessapproachingpolicetoget

his statement recorded during investigation was another serious criticism from ld. defence counsel. This proposition has been examinedwhileanalysingevidenceofPW10anditwasfoundthat delaybyitselfcouldnotbeagroundtodiscardtheevidenceofa witnessandcourtwastoputitselftoacautiousapproachandcome toafindingiftestimonyofthewitnessprovidedacredibility. This aspect hasbeen examinedinthejudgmentearlierpassedagainst accusedVikasandVishalYadav. Ithasbeenfoundthatdelayin reporting the matter by witness who himself saw the crime being committedbyaccusedpersonscreatedaseriousdoubtbutthenin the present case the witness was concerned with a fact that he happenedtosee onlyaccusedpersonsanddeceasedwasintheir company.Itisafactthatwithinadayortwowitnesscametoknow from mediareportsandtelevisiontelecastthatvictimNitishKatara whomthewitnesshadseeninthecompanyofaccusedpersonshad beenmurdered. Anormalusualhumanconductexpectedfromthe witness was to report the facts seen and observed by him to the
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policewithoutdelay.Butthenifwitnessdidnotreactinthatmanner was not to be a factor to condemn him as unbelievable witness outrightly.IdoagreewiththesubmissionsofLdAPPthatevidence ofthiswitnessshouldbeappreciatedinthebackgroundthataccused VikasandVishalYadavimmediatelyonbeingarrestedinthepresent casehadnamedthepresentaccusedastheiraccomplice.Witness BhartiYadavwhowasexaminedduringinvestigationinthepresence of her father had named this accused Sukhdev Pehlwan as the companion of her brothers Vikas and Vishal as the persons responsiblefortheincidentinthiscase.LdAPPsubmittedthatthis witnesshadnopersonalenmityorgrudgeagainstanyofthethree accused persons, he was an independent witness and was to be believedandaccepted. Hefurthersubmittedthatevenifancestors ofthiswitnessandsomeancestorsofthehusbandofcomplainant Smt.Neelam Katara happened to live in a village merely by that reasonwitnesscouldnotbesaidtobeanunreliablewitnessbeing interestedwitness.Ihaveconsideredthesesubmissions. 77. Itisamatterofrecordthatnoreasonorgrudgehasbeen

attributedtothiswitnessastowhyhewoulddeposeagainstaccused persons.Aninterestedwitnessisonewhoisinterestedinsecuring convictionofapersonoutofvengeanceorenmity(RamBaroseVs

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StateofU.P2009(14)SCALE54)WehavetoexaminePW14in thesetofcircumstancesthatheclaimstohaveseencertainpersons inavehicleanditbeingoddhoursinthenighthehappenedtosee thembyacloselookwhentheirvehiclestopped. Itissometime thereafter that he happened to come to know that one of the occupants of that vehicle whom he had seen in the company of accusedpersonshadbeenmurderedandonlythenhewenttothe policetogivenarrationofthefactshehimselfhadseen. Thereis delay but then witness himself had explained it that on two occasionshedidnotfindinvestigatingofficeravailableinthepolice station. Witnessdidnotdisclosepurposeofhisvisittoanyother policeofficerinthepolicestationbutthatkindofconductmaynotbe described as serious abnormality. Witness was a common man, disinterestedinthepersonsinvolvedintheincidentandifhereacted inamannerthathewenttothepolicewithsomedelay,hisevidence wasnottoberejected.Likewisesomeancestorsofthiswitnessand ancestorsofthecomplainantwerefromacommonvillage,itwastoo fartotermthewitnessinterested. Idoagreewiththesubmissions and arguments of ld APP that evidence of this witness is to be appreciated in the backdrop that name of the present accused SukhdevPehlwanhadappearedfromthemouthofaccusedVikas
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and Vishal Yadav themselves and from the initial 161 Cr P.C statement of Bharti Yadav. Bharti Yadav did not support the prosecutioncasebutthenitwasquietnaturalthatothertwoaccused involvedinthiscasewereherbrothers.Ithasbeenfoundasafact duly proved that because of a close love relationship between deceasedNitishKataraandBhartiYadav,theothertwoaccusedhad a motive against deceased. When examined in those set of circumstancesandparticularlyabsenceofanyapparentreasonasto whythisaccusedwasnamedbyothertwoaccusedVikasandVishal YadavandalsonamedbywitnessBhartiYadavthenacredibilityis found reflected from testimony of this witness. This witness has alreadybeenbelievedinthetrialearlierheldagainstaccusedVikas andVishalYadav. 78. LddefencecounselsoughttoimpeachcredibilityofPW14 fromanotherconductofthewitnessthathehadenteredintothree matrimonial alliances and that reflected the kind and nature the person he was, particularly where all those three matrimonial alliancesweredisruptedwiththelodgingofcriminalcasesbythose spouses ofthis witness. Tomyopinionthere isnolawtoholda personuncreditworthyinevidencebecauseofsuchincidentsinhis personallife.Courthastoseeastowhythewitnesswouldstand
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asafalsewitness.WhenPW14didnothaveanypersonalgrudge orenmityagainstaccusedpersonsitwasdifficulttobrandwitnessas unreliable. As regards identity of accused Sukhdev Pehlwan, witness besides deposing that he found this accused conducting business in the liquor shop in Bulandshehar area run by accused persons,healsosawthataccusedinthecompanyofVikasYadav. Lddefencecounselappearedtohaveapointinhisargumentsthat witness should not be believed that he used to buy liquor from a particular shop where accused Sukhdev was working particularly onlywhenwitnesshappenedtovisithisnativeplaceinDistrictAgra. But then witness deposed that he otherwise used to see accused Sukhdev Pehlwan in the company of Vikas Yadav in Ghaziabad area.NorebuttaldefencehasbeenbroughtonrecordthatSukhdev PehlwanhadnotworkedintheliquorshoprunbyD.P.Yadavorthat hehadnotbeenaroundthatplaceinBulandsheharorGhaziabad. Witnesscannotbediscreditedonthatpoint. 79. LdAPPreferredtocrossexaminationofPW14appearingat

page27asrecordedon27/7/2007topointoutthataccusedpersons ratheradmittedtheirpresenceinthevehicleasseenandnoticedby PW14.Itisrelevanttoquotethiscrossexamination. ''ExceptaccusedVikaswhohadabusedmeontheinterveningnight

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of1617/2/02, nootheroccupantofthevehiclehadsaidanything. AgainsaidIdonotrememberifanyotheroccupantofthevehicle utteredanywords.Itiscorrectthatatthattimealltheoccupantsof thevehicleweresittingcomfortably. Itisincorrecttosuggestthat normallythereisnoelectricityontheroadwheretheincidenttook place''. 80. Witnesshasacceptedthesuggestionascorrectthatoccupants

of the vehicle were found sitting comfortably . Meaning thereby defencesoughttobesuggestedwasthatnocircumstanceindicated any kind of abnormality when the witness saw occupants in that vehicleandthusitwouldnothaveledtoasituationwhereaccused committed murder of the victim deceased Nitish Katara. There is somesubstance inthis argument ofLdAPP. If accused persons alongwithdeceasedNitishKatarawerepresenttogetherinavehicle and if by that point of time they were seen by PW14 found comfortable, still it was for accused persons to come out with an explanation as to how the victim deceased was murdered, as to whenandwherehepartedhiscompanywiththeaccusedpersons. 81. Ld defence counsel argued that investigating officer had

recorded statement of one Kamal Kishore as Ex.PW35/4. Kamal Kishorewasaguard/houseservantatthehouseofD.P.Yadavat15

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BalwantRaiMehtaLane,NewDelhi.Accordingtothatstatementof Kamal Kishore accused Vikas Yadav along with Nitish Katara reachedBalwantRaiMehtaLanehouseinvehiclebyaround1or 1.30 a.m on the intervening night of the incident of this case. CounselsubmittedthatstatementofKamalKishorewasrecordedby investigating officer Anil Samania after taking Kamal Kishore to policestationTilakMarg,NewDelhi.CounselsubmittedthatKamal Kishorewasnotsited asawitnessinthiscase andthatreflected unfairnessintheinvestigation. ItissubmittedthatifNitishKatara wasseeninthecompanyofVikasYadavataround1or1.30a.mon theinterveningnightoftheincidentofthiscasethatgoescontraryto prosecutioncasethatthreeaccusedpersonsabductedNitishKatara inavehicleandcommittedhismurder. 82. LdAPPcounterarguedthispointandsubmittedthatKamal

Kishorecouldnotbejoinedawitnessinthiscaseasnosuchperson wasavailableortraceable.HesubmittedthatifKamalKishorewasa house servant or a guard employed and working in the house of D.P.Yadav then he could have been produced by the accused personsthemselves.HearguedthatwhereKamalKishorewasnot cited as a witness and has not been examined in this case from eitherside,noinferenceofunfairinvestigationoranyattemptonthe
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partofprosecutiontosuppressanymaterialevidencefromthecourt shouldbedrawn.Ihaveappreciatedthesecontentions.Admittedly Kamal Kishore has not been produced in evidence. Even if for argumentsakeitisfoundthatKamalKishorehadseenanysuchfact that Vikas Yadav along with deceased Nitish Katara reached his father'shouseat15BalwantRaiMehtaLane,Delhiataround1or 1.30midnight,itwasstillforaccusedVikasYadavtohavecomeout withacaseoranexplanationthathehappenedtobeinthecompany ofNitishKataraandhepartedwithhiscompanysubsequentlyina peculiarparticularsituation. IfaccusedVikasYadavdidnotaccept any such factual situation that he along with Nitish Katara were togetherasseenbyaround1or1.30midnight,anysuchstatement Ex.PW35/4 becomes inconsequential and defence cannot be permitted to take its advantage. Even otherwise had it been a situationthatallthreeaccusedpersonsalongwithdeceasedNitish KatarawereseenandfoundinaTataSafarivehicleataround12.30 midnightbyPW14,itbeingtheincriminatingcircumstanceof''last seen'', seen and observed by prosecution witness lastly, what internal arrangement amongst accused thereafter came to be prosecuted, it was for accused persons to come out with an explanationwheretheonusshifteduponaccusedpersonsinterms
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of Section 106 of the Evidence Act that a particular positive fact within their notice and knowledge was to be explained by them. ArgumentsofLddefencecounselconcerningKamalKishorefailsto provideanysupportorfavourtoaccusedpersons. PresenceofpresentaccusedSukhdevwithothertwoaccused Vikas and Vishal Yadav when deceased was in their company on interveningnightofincidentcanbeheldprovedfromtheevidenceof PW14supportedbyPW10andthecircumstancethatnameofthis accusedfiguredattheveryinitialstageofcasethathewaspresent atweddingsite. INCRIMINATING CIRCUMSTANCE OF ABSCONDANCE OF ACCUSEDSUKHDEVPEHLWAN. 83. InvestigatingofficerPW22deposedinevidencethatnameof

thisaccusedSukhdevPehlwancametobementionedbyaccused Vikas and Vishal Yadav soon after their arrest on 25/2/2002. He further deposed that witness Bharti Yadav was also named this accusedinherstatementrecordedon2/3/2002andwhenhetook steps to arrest this accused Sukhdev Pehlwan he was found absconding.Hedeposedthattheliquorshopwhereheusedtowork inBulandsheharwasraidedbuthewasabsentfromthatplaceand

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onlyaguaranteecardbearinghisphotographcouldbecollectedand seizedfromthatshopandinvestigatingofficer identifiedthatcard asEx.PW22/A1.Hefurtherdeposedthatpoliceteamswereformed and even accused was not found available in his native village. Arrest warrants obtained against him could not be executed and finally this accused was got declared a proclaimed offender on 31/3/2002. Aprize/rewardwerewasalsogotdeclaredforanybody to provide any clue concerning this accused. He further deposed thatproclamationforthatawardwasgotpublishedinthenewspaper alongwithphotographofthisaccusedanditwasalsogottelevision telecast.Hefurtherdeposedthatduringinvestigationitrevealedthat accusedSukhdevPehlwanwasholdinganArmLicenseforadouble barrelgunfromBulandshehar,U.Pandthatfirearmlicensewasgot cancelledintheyear2002.Investigatingofficerdeposedthatfinally accusedcametobearrestedfrom hisnativeplaceinDewariyain February 2005. It has been argued from prosecution side that conduct of accused in his abscondance reflected upon his guilty brain and it provides support and corroboration to the prosecution case that he was associate of other two accused persons in the offences of abduction and murder of deceased Nitish Katara. WitnessassertedincrossexaminationthatBhartiYadavspecifically
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mentionedthefactthatthisaccusedSukhdevPehlwanusedtowork in liquor shop of her father in Bulandshehar. Witness refuted defence suggestion that he deliberately omitted to arrest this accusedbecausehewantedthisaccusedtobecomeafalsewitness againstVikasandVishalYadav. 84. Ld defence counsel argued that proceedings to declare

accusedaproclaimedoffenderwereonlygotinitiatedforthesakeof proceedings. Counsel submitted that accused has examined a witness from his native place in his defence DW1 who has specifically deposed that accused Sukhdev Pehlwan remained through outpresent inhisnative villagefrom2002till2005. This defencewitnessfurtherdeposedthataccusedwaspickedupfrom hishouseinthevillagewhenarrestedbythepoliceandnoreasons wereexplainedbythepoliceforthatarrest. 85. Incrossexaminationthisdefencewitnessdeposedthathedid not know if till 2002 accused Sukhdev was working in the liquor shops in Bulandshehar, U.P which belonged to D.P.Yadav or that accusedSukhdevwasresidinginBulandshehar,U.Porthataccused SukhdevYadavhadobtainedafirearmlicense. Witnessadmitted thattill2005accusedSukhdevdidnotdiscloseanyoftheabovefact tothiswitness. Witnessfurtheradmittedthathedidnotknowifan
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awardofRs.25,000/hadbeendeclaredforthearrestofaccusedin theyear2002. Witness admittedthatwarrantsofattachmenthad beenexecutedinthevillageintheyear20022003butevenasifthe Pradhaninthevillagehedidnotaskas toconcerningwhatcase those attachment were being executed against Sukhdev. He deposedthathecametoknowthatitwereconcerningacasefrom Ghaziabad,U.P.TestimonysuggeststhatevenifaccusedSukhdev PehlwanhappenedtovisithisnativeplaceinDistrictKushiNagar, U.P which was a far away distant place from Ghaziabad or Bulandshehar area, even if process of proclamation warrants or warrantsfortheattachmentofthepropertyofaccusedSukhdevhad been executed it was none of the notice and knowledge of this witness. Witness admits that though he saw accused Sukhdev Pehlwanpresentinvillagefromtheyear2002to2005hewasnot aware if accused Sukhdev had worked in the liquor shop of D.P.Yadavpriorto2002orthatduringthatemploymenthelivedand residedinBulandshehar,U.P. Accordinglywhenthiscircumstance of absence and abscondance of accused from Bulandshehar or Ghaziabadislookedintointhelightofanotherprovedcircumstance thathewaswiththeothertwoaccusedVikasandVishalYadavwhen deceasedwaslastseeninthecompanyofaccusedpersonsthenthe
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conduct ofaccused inremainingabsentandabscondingbecomes relevant. No much credit or importance can be given to the testimony of defence witness that from 2002 to 2005 accused remainedpresentinhisnativevillage. Itisamatterofrecordthat accusedSukhdevwhencapturedandarrestedinFebruary2005it was not on account of this accused found to have been declared proclaimedoffender. Hewasarrestedinacriminalcaseregistered U/s307IPC. Itfurthersupportstheprosecutioncasethatevenif accused happened to come and reside in his native village some timeaftertheincidentofthiscasedespitehavingbeendeclareda proclaimed offender, he remained undetected as a proclaimed offender in his native village. Accordingly the fact is found duly proved and established that name of accused Sukhdev Pehlwan figured inthis case at averyinitialstageandaccused wasfound absentandabsconding. Lddefencecounselreferredtojudgments reported as AIR 1972 SC 10Rehman Vs State of U.P, AIR1971 1050SCMahirVsStateofU.PandAIR1974SC197DaterSingh VsStateofPunjabinsupportofhisargumentsthatcircumstanceof absence or abscondings by itself could not be treated to be an incriminatingone. 86. There is no controversy to the proposition of law that mere
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absenceandabscondanceofaccusedmaynotbetakenandtreated tobeaguiltybrainandconduct.IthasbeenheldinacaseRavinder KumarPalVsRepublicof India2011(2)SCC490thatincasea personisabscondingaftercommissionofoffenceofwhichhemay notbetheauthor,suchacircumstancealonemaynotbeenoughto draw an adverse inference against him as it would go against doctrineofinnocence. Itis quietpossiblethathemayberunning awaymerelybeingsuspected,outoffearofthepolicearrest. 87. The propositions suggests that if a person is found

unconnectabletotheincidentofacasebyanyotherincriminating evidence then mere fact that he tried to run away and remained absconding will not be a conduct or circumstance to draw an inference of guilt. In the present case the other incriminating circumstances that accused shared in the motive which other two accused Vikas and Vishal Yadav had against the deceased and another incriminating circumstance of deceased last seen in the company of accused persons have been found proved then the conductofaccusedSukhdevinhisabscondanceprovidesasupport andcorroborationtotheprosecutioncase. 88. The examination and analysis of the evidence as discussed

above brings on record the following circumstances found proved

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againstaccusedSukhdevYadavwhichare; 1. Already convict accused Vikas and Vishal Yadav had a strong motiveagainstdeceasedNitishKatarawhich standsprovedand established against them in their trial and accused Sukhdev Pehlwan being in the employment on liquor shop business of accusedfamilysharedwithothertwoaccusedinthatmotiveand that sharing in motive is to be inferred from the incriminating circumstanceofallthreeaccusedfoundandseentogetherwhen lastseenwiththecompanyofdeceased. 2. Deceased was last seen in the company of all three accused persons.Timegapbetweendeceasedlastseeninthecompanyof accused and dead body of the deceased recovered in the next morning was a small one where from an inference of accused personshavingcommittedthemurderofdeceasedNitishKatara couldbedrawn. 3. Abscondanceofaccusedaftertheincidentofthiscaseprovided supporttotheprosecutiontheory. 89. Theaboveincriminatingcircumstancesarefoundprovedbythe

prosecution. Thecircumstancessoestablished canbesaidtobe consistent only with the hypothesis of the guilt of accused. The circumstancesare ofaconclusivenatureandtendencyparticularly
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where last seen circumstance shows that deceased was in the companyofaccusedpersonsinoddhoursinthenightandpartingof thatcompanyofdeceasedwithaccusedbecameastrongonusfor discharge by accused persons. The circumstances can be said excludingeverypossiblehypothesisexcepttheguiltoftheaccused persons. The circumstances form a complete chain and no reasonablegroundforanyinferenceconsistentwiththeinnocenceof the accused can be drawn particularly in the absence of accused persons coming out with any explanation. Accordingly I hold that accused Sukhdev Pehlwan shared a common intention with other twoalreadyconvictaccusedVikasYadavandVishalYadavfirstlyin abducting deceased Nitish Katara and then committed his murder and then putting the dead body to flames/burns in orderto cause disappearanceoftheevidenceinordertoscreenhimselfofthelegal punishment for the said offences. Accused Sukhdev Yadav @ Pehlwan is liable to be convicted U/s 364, 302 & 201 read with Section34IPC.Iconvicthimaccordingly.

AnnouncedintheOpen courton06/07/2011.

(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01)

NEWDELHIDISTRICT,NEWDELHI.

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StateofU.PVsSukhdevYadav@Pehlwan FIRNo.192/02 U/s364/302/201IPC P.SKaviNagar. 12/07/2011 Present: Spl.PPMr.JoonfortheState.

ConvictproducedfromJ.CwithcounselSh.SushilBajaj Vide separate order convict has been awarded a sentenceoflifeimprisonmentandafineofRs.10,000/withdefault sentenceof2yearsR.IU/s302IPC,furtherawardedsentenceof7 yearsR.IandafineofRs.5,000/withdefaultsentenceofsixmonths R.IU/s364IPC, furtherawardedasentenceof3yearsR.Ianda fineofRs.5,000/withdefaultsentence ofsixmonthsR.IU/s 201 IPC upon accused. Substantive sentences shall run concurrently. Copyofthejudgmentandordersentencebegiventotheconvictfree ofcost.Filebeconsignedtorecordroom.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) 12/07/2011.

NEWDELHIDISTRICT,NEWDELHI.

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