J.S Khehar, J.— The facts, as they emerge from the judgment rendered by the trial court at Karkardooma in Sessions Case No. 68 of 2005, decided on 21-4-2008, the judgment of the High Court of Delhi in Gajraj v. State decided on 18-3-2009, and the statement of witnesses examined during the course of prosecution of the appellant-accused herein (which have been made available to us, in the form of additional documents), reveal that on 23-7-2005 at about 6.25 p.m, a telephone call was received at Police Station Krishna Nagar, conveying information, that a dead body was lying in House No. F-9/33, Krishna Nagar, Delhi. On receipt of the aforesaid telephone call, Daily Diary No. 31-A was recorded at Police Station Krishna Nagar. Police officials were immediately deputed to the site. On enquiry it came to be concluded, that the dead body was that of Harish Kumar, resident of House No. 303, Gagan Vihar, Delhi.
2. The deceased Harish Kumar, had suffered bullet injuries on the left side of the temporal region, as also, on the left side of the abdomen. Accordingly, first information report bearing No. 297 of 2005 was registered at Police Station Krishna Nagar for offences punishable under Sections 302, 452 and 380 of the Penal Code, 1860 on 7-1-2006. On 14-12-2007, an additional charge under Section 404 of the Penal Code was also framed against the appellant-accused.
3. Minakshi, the wife of the deceased, who was at Chandigarh, reached Delhi on receiving information that her husband Harish Kumar (the deceased) had been murdered. She identified the body of the deceased in the mortuary. Minakshi informed the police, that her husband was also with her at Chandigarh. And that, when he left Chandigarh for Delhi, he had in his possession a licensed revolver, a mobile phone, SIM No. 9871879824, as also, a sum of Rs 3 lakhs which was taken by him to Delhi, for negotiating a settlement.
4. During the course of investigation, the police was able to ascertain, that mobile phone, SIM No. 9871879824 was being used on a mobile handset bearing IMEI No. 35136304044030. On further investigation it was found, that the aforesaid mobile handset bearing IMEI No. 35136304044030 was being used for mobile phone, SIM No. 9818480558 immediately after the murder of the deceased Harish Kumar. SIM No. 9818480558 was registered in the name of the appellant-accused. It is through this investigative process, that the police eventually reached the appellant-accused Gajraj Singh, son of Veer Singh, resident at 12/2, Kundan Nagar, Lakshmi Nagar, Delhi.
5. The police recovered from the appellant-accused three mobile handsets, one of which was of Panasonic make bearing IMEI No. 35136304044030 i.e the handset in which SIM No. 9871879824 was used by the deceased. The police also recovered from the appellant-accused, the licensed revolver of the deceased Harish Kumar. Complete and effective recovery was not made of the sum of Rs 3 lakhs which Minakshi (wife of the deceased Harish Kumar) had stated was in possession of the deceased, at the time he had departed Chandigarh for Delhi. The police, in order to establish that the appellant-accused was in possession of funds in excess of his earnings, referred to a deposit of Rs 9000 in the account of the appellant-accused in State Bank of India, Kundan Nagar Branch, Delhi. The said deposit had been made on 25-7-2005 (the murder in question had been committed two days earlier, on 23-7-2005).
6. In order to bring home the charges, the prosecution examined a total of 29 witnesses. A perusal of the statements of the prosecution witnesses reveal, that the conviction of the appellant-accused was sought merely on circumstantial evidence, namely, the use (and possession) of a mobile handset bearing IMEI No. 35136304044030 on the date of murder itself i.e on 23-7-2005 by the appellant-accused for mobile phone, SIM No. 9818480558 (which was registered in the name of the appellant-accused), the recovery of the revolver of the deceased Harish Kumar along with live and spent cartridges, as well as, the deposit of Rs 9000 in the account of the appellant-accused with State Bank of India, Kundan Nagar Branch, Delhi.
7. The Additional Sessions Judge, Karkardooma, Delhi disposed of Sessions Case No. 68 of 2005 on 21-4-2008. It was sought to be concluded, that the prosecution had been able to establish its case against the appellant-accused for offences punishable under Sections 302 and 404 of the Penal Code. The appellant-accused was, however, acquitted of the charges framed against him under Sections 380 and 452 of the Penal Code. Thereupon by an order dated 28-4-2008, the appellant-accused was sentenced to undergo rigorous imprisonment for life, and to pay a fine of Rs 50,000, for the offence punishable under Section 302 of the Penal Code (in the event of default of payment of fine the appellant-accused was required to undergo further rigorous imprisonment for an additional period of three years). The accused was also sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs 5000 for the offence punishable under Section 404 of the Penal Code (in case of default of payment of fine, the appellant-accused was required to undergo further rigorous imprisonment for four months). The aforesaid sentences, awarded by the trial court, were to run concurrently.
8. Dissatisfied with the order passed by the trial court, the appellant-accused preferred Criminal Appeal No. 461 of 2008 before the High Court of Delhi. The appeal preferred by the appellant-accused, came to be dismissed on merits, on 18-3-2009. The sentence awarded by the trial court was however modified, inasmuch as, in the event of non-payment of fine, imposed on the appellant-accused for the offence punishable under Section 302 of the Penal Code, the High Court reduced the period of imprisonment in lieu thereof, from three years to six months.
9. The appellant-accused has approached this Court by filing the instant appeal so as to assail the orders passed in Sessions Case No. 68 of 2005 (dated 21-4-2008) and in Criminal Appeal No. 461 of 2008 (dated 18-3-2009).
10. During the course of hearing, the learned counsel for the appellant-accused raised three contentions. The first of the aforesaid contention was the basis of his primary emphasis. The contention advanced was, that the appellant-accused had been implicated on the basis of allegedly being in possession of mobile handset bearing IMEI No. 35136304044030. Insofar as the instant aspect of the matter is concerned, it was the submission of the learned counsel for the appellant-accused, that the aforesaid mobile handset with the said IMEI number, was traced by the police on the disclosure of the wife of the deceased Harish Kumar. And also because the appellant-accused was using mobile phone, SIM No. 9871879824 on the aforesaid handset. Since the appellant-accused was using a mobile phone (SIM) registered in his (Gajraj Singh's) name on the mobile handset of the deceased (Harish Kumar), the police was able to ascertain his identity, and thereupon reach him.
11. The object of the learned counsel, while advancing the first contention, was to establish that the instant projection in the evidence produced by the prosecution, was to fabricate a false story to implicate the appellant-accused. According to the learned counsel, discrepancy in the prosecution evidence would establish the objective of the first contention. The sole discrepancy sought to be pointed out, was based on the statement of Minakshi, the wife of the deceased Harish Kumar. Minakshi while deposing before the trial court as PW 23, had stated that her husband had called her at around 12 noon, and thereafter, at around 3 p.m It was sought to be asserted, that the call details from Exhibit PW 25.DX reveal, that two incoming calls were received from a Chandigarh telephone, at around the time expressed by Minakshi, PW 23. It was pointed out, that as per the deposition of PW 23, it should have been outgoing calls from mobile phone, SIM No. 9871879824 (as Minakshi had claimed to have received the said two calls from her husband), yet as per Exhibit PW 25.DX, these were incoming calls.
12. Based on the aforesaid discrepancy, it was the vehement contention of the learned counsel for the appellant-accused, that the factum of tracing the appellant-accused from the mobile phone (SIM) of the deceased Harish Kumar was a complete concoction at the hands of the investigating agency. It was also sought to be suggested, that if the investigating agency's theory of reaching the appellant-accused was based on the call details of mobile phone, SIM No. 9871879824, the same becomes clearly unacceptable. According to the learned counsel, it would be natural to infer, that the police could not have reached the appellant-accused on the basis of call details of Phone No. 9871879824. And therefore, the question of recovery of the revolver, as also, the mobile handset (owned by the deceased Harish Kumar), from his possession, does not arise. It was sought to be suggested that they must have been planted on the appellant-accused to implicate him.
13. Insofar as the first contention advanced at the hands of the learned counsel for the appellant-accused is concerned, the learned counsel also invited our attention to the reasoning depicted in the impugned order passed by the High Court (dated 18-3-2009), wherein the appellant-accused has been linked to the incident on the basis of the following reasoning:
“26. Holding that the call record, Ext. PW 22.A evidences that two calls from Chandigarh were received on Mobile No. 9871879824 in the afternoon of 23-7-2005, corroborates the testimony of the wife of the deceased who was staying at Chandigarh on 23-7-2005 that she had talked to the deceased over telephone in the afternoon of 23-7-2005, which in turn establishes that Mobile No. 9871879824 was being used by the deceased on the date of his death; that the call records, Ext. PW 22.A and Ext. PW 22.B establish that the handset having IMEI No. 350608101231170, which handset was used by the accused on a regular basis, was used by the deceased on 10-7-2005 and 11-7-2005 and that this establishes that the deceased and the accused were in touch with each other; the call record, Ext. PW 22.B evidences that the handset which was used by the deceased on the date of his death was in possession of the accused soon after the death of the deceased and that the same is a strong incriminating circumstance against the accused; that the prosecution has been able to establish that the handset which was used by the deceased before his death and the revolver which was the weapon of offence were recovered at the instance of the accused….”
14. It is the assertion of the learned counsel for the appellant-accused, that the appellant-accused could never have been traced on the basis of the mobile phone, SIM No. 9871879824, as no call was ever made by the deceased Harish Kumar from the aforesaid mobile number to the appellant-accused. Likewise, no call was ever made by the appellant-accused from his mobile phone, SIM No. 9818480558 to the deceased Harish Kumar. As such it is submitted, that the conclusions drawn by the trial court, as also, by the High Court, are clearly unacceptable, and deserve to be set aside.
15. We have given our thoughtful consideration to the first contention advanced at the hands of the learned counsel for the appellant-accused, as has been brought out in the foregoing two paragraphs. We are, however of the view, that the submission advanced by the learned counsel for the appellant-accused cannot be accepted, keeping in mind the evidence produced by the prosecution. Even though we are of the view, that the learned counsel for the appellant-accused is fully justified in pointing out the discrepancy referred to by him, insofar as the statement of Minakshi, PW 23 is concerned and the reasoning rendered by the High Court, as has been extracted hereinabove, may not be fully justified, yet we have no doubt, that the manner in which the appellant-accused came to be identified and traced (during the course of investigation), fully establishes the veracity of the prosecution case.
16. The evidence produced by the prosecution is based on one irrefutable fact, namely, every mobile handset has an exclusive IMEI number. No two mobile handsets have the same IMEI number. And every time a mobile handset is used for making a call, besides recording the number of the caller as well as the person called, the IMEI numbers of the handsets used are also recorded by the service provider. The aforesaid factual position has to be kept in mind while examining the prosecution evidence.
17. The first step in the process of investigation was the receipt of information from Minakshi (the wife of deceased Harish Kumar), that the deceased was using mobile phone, SIM No. 9871879824. Evidence on record indicates, that the aforesaid SIM number became dead on 23-7-2005 i.e the date on which deceased Harish Kumar came to be murdered. In the process of investigation it then emerged, that the mobile handset bearing IMEI No. 35136304044030 was used with mobile phone, SIM No. 9818480558. This happened soon after the murder of Harish Kumar, on 23-7-2005 itself. The same SIM was used to make calls from the same handset up to 2-8-2005.
18. Through the statement of R.K Singh, PW 22, Nodal Officer, Bharati Airtel Ltd., it came to be established, that mobile phone, SIM No. 9818480558 was registered in the name of appellant-accused Gajraj Singh. It is from the use of the mobile handset bearing IMEI No. 35136304044030, that the police came to trace the appellant-accused Gajraj Singh. It is only this aspect of the matter which is relevant for the purpose of present controversy. The use of mobile handset bearing IMEI No. 35136304044030 from which the appellant-accused made calls from his own registered mobile phone, SIM No. 9818480558, immediately after the occurrence of the murder of deceased Harish Kumar, was a legitimate basis for the identification of the appellant-accused. The appellant-accused was arrested on 6-8-2005. The nexus of the appellant-accused with the deceased at the time of occurrence stands fully substantiated from the aforesaid SIM/IMEI details.
19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi, PW 23, pointed out by the learned counsel for the appellant-accused, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the appellant-accused came to be identified during the course of investigation, was legitimate and unassailable. The IMEI number of the handset, from which the appellant-accused was making calls by using a mobile phone (SIM) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies. In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid scientific evidence. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the appellant-accused.
20. The second contention advanced at the hands of the learned counsel for the appellant-accused was, that there were only two independent witnesses associated with the recovery of the revolver, and the mobile handset bearing IMEI No. 35136304044030 (belonging to deceased Harish Kumar), namely, Yuvraj, PW 12 and Veer Singh, PW 13. The said revolver and the mobile handset were, allegedly, recovered at the instance of the appellant-accused Gajraj Singh. Yuvraj, while appearing as PW 12, denied having signed the recovery memo. He asserted that his signatures had been taken on blank papers, which had then been used in preparing the recovery memo. A similar statement was made by Veer Singh, PW 13. Pointing out to the statement made by the appellant-accused under Section 313 CrPC, it was submitted, that the appellant-accused had clearly maintained, that the investigating officer(s) in the case, had intentionally and deliberately implicated the appellant-accused.
21. We have examined the second submission advanced at the hands of the learned counsel for the appellant-accused. Before evaluating the statement of Yuvraj, PW 12 and Veer Singh, PW 13, it is necessary to keep in mind their relationship with the appellant-accused. While Yuvraj, PW 12 is the brother of appellant-accused, Veer Singh, PW 13 is his father. It is apparent, that they would leave no stone unturned to ensure the acquittal of the appellant-accused. Despite the aforesaid, it is clear from the submissions advanced at the hands of the learned counsel for the appellant-accused, that neither Yuvraj, PW 12 nor Veer Singh, PW 13, disputed the veracity of their signatures on the recovery memos. It is, therefore, apparent that their signatures, on the recovery memos, were authentic.
22. If the signatures of the brother and father of the appellant-accused had been taken forcibly by the investigating agency, we have no doubt in our minds, that not only the appellant-accused but also his brother Yuvraj, PW 12 and his father Veer Singh, PW 13, would have raised a hue and cry. They would have made representations to the authorities concerned pointing out, that the police had obtained their signatures on blank papers. The statements of Yuvraj, PW 12 and Veer Singh, PW 13 do not reveal any such action at their hands. We have, therefore, no doubt in our minds, that they had duly affixed their signatures on the recovery memos, vide which the revolver of the deceased, as also, the mobile handset of Panasonic make bearing IMEI No. 35136304044030 were recovered at the behest of appellant-accused Gajraj Singh. In view of the above, we find no merit even in the second contention advanced at the hands of the appellant-accused.
23. The third and the last contention advanced by the learned counsel for the appellant-accused was in respect of deposit of Rs 9000 by the appellant-accused in his account with State Bank of India, Kundan Nagar Branch, Delhi. It was the contention of the learned counsel for the appellant-accused, that Minakshi, PW 23, the wife of deceased Harish Kumar had pointed out, that the deceased was having in his possession a sum of Rs 3 lakhs, when he departed Chandigarh for Delhi. The depiction of deposit of Rs 9000, according to the learned counsel, was a futile attempt at the hands of the prosecution to show, that the appellant-accused had deposited a part of money taken by him from deceased Harish Kumar, so as to establish his nexus with the crime. It was asserted that the prosecution could not show how the appellant-accused disposed of the balance amount.
24. It is not possible for us to accept even the third contention advanced at the hands of the learned counsel for the appellant-accused. We are satisfied that the amount of Rs 9000, deposited by the accused in his bank account out of the total sum of Rs 3 lakhs may not be a justifiable basis to establish, that the alleged crime was committed by the appellant-accused. But then, keeping in mind the overwhelming evidence produced by the prosecution in establishing the crime, namely, the recovery of revolver of the deceased from the appellant-accused along with live and spent cartridges, the recovery of mobile handset of Panasonic make bearing IMEI No. 35136304044030 from the custody of the appellant-accused, and the fact that the appellant-accused was using the same soon after the murder of the deceased Harish Kumar with mobile phone, SIM No. 9818480558 which was registered in the name of the appellant-accused (and that he continued to use it till his arrest), leaves no room for any doubt, that the prosecution has brought home the charges as have been found to be established against the appellant-accused, by the trial court as also by the High Court.
25. For the reasons recorded hereinabove we find no merit in the instant appeal and the same is accordingly dismissed.