THE HIGH COURT OF DELHI AT NEW DELHI. % Judgment delivered on: Crl. M. B. 1381/2008 in CRL. A 910/ versus AND

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1 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: Crl. M. B. 1381/2008 in CRL. A 910/2008 VIKAS YADAV... Appellant - versus STATE OF U.P... Respondents Advocates who appeared in this case: For the Appellant : Mr U. R. Lalit, Sr Advocate with Mr Sumeet Verma and Ms Charu Verma For the State of Delhi : Ms Mukta Gupta, PP For the Complainant : Mr P. K. Dey with Mr Kaushik Dey For the State of U. P. : Mr Sakha Ram Singh, Sr Advocate with Mr Sahdev Singh and Mr Kamlendra Mishra AND + Crl. M. B. 1155/2008 in CRL. A 741/2008 VISHAL YADAV... Appellant - versus STATE OF U.P... Respondents Advocates who appeared in this case: For the Appellant : Mr D. C. Mathur, Sr Advocate with Mr Sanjay Jain and Mr Mukesh Kumar For the State of Delhi : Ms Mukta Gupta, PP For the Complainant : Mr P. K. Dey with Mr Kaushik Dey For the State of U. P. : Mr Sakha Ram Singh, Sr Advocate with Mr Sahdev Singh and Mr Kamlendra Mishra CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P. K. BHASIN Crl. M.B & Page 1 of 18

2 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes BADAR DURREZ AHMED, J 1. These applications for bail are taken up together inasmuch as they are of the co-accused. Both the applicants Vikas Yadav and Vishal Yadav have been convicted under Sections 364/302/201/34 IPC. The appellants/ applicants were sentenced to undergo life imprisonment for the offence under Section 302/34 IPC along with a fine of Rs 1 lac, in default whereof, they were to undergo simple imprisonment for one year. The appellants/ applicants were also sentenced to undergo rigorous imprisonment for ten years in respect of the offence under Section 364/34 IPC along with a fine of Rs 50,000/- each, in default whereof, they were to further undergo simple imprisonment for six months. The appellants/ applicants were also sentenced to undergo rigorous imprisonment for five years in respect of the offence under Section 201/34 IPC and to pay a fine of Rs 10,000/- each, in default whereof, they were to undergo simple imprisonment for a further period of three months. The co-accused have been convicted for the offence of abducting and murdering Nitish Katara as also for causing disappearance of evidence by burning his dead body. Crl. M.B & Page 2 of 18

3 2. The prosecution case in brief is that the deceased Nitish Katara and Bharti Yadav (sister of the appellant Vikas Yadav) studied together at IMT, Ghaziabad. They fell in love. This affair was apparently not to the liking of Bharti Yadav s family members and particularly her brother Vikas Yadav and her cousin Vishal Yadav. On , there was a marriage function of one Shivani Gaur, who was a friend of both Nitish Katara and Bharti Yadav. That function was at Diamond Palace, Shastri Nagar, Ghaziabad. Nitish Katara and Bharti Yadav as well as other family members of Bharti Yadav were invited to the said wedding. The appellants also attended the said wedding. Nitish Katara, who was in the company of his friends at the said wedding party at Diamond Palace, Shastri Nagar, Ghaziabad, was called away by someone at the instance of the appellants and he left Diamond Palace along with the appellants. It is the case of the prosecution that the appellants had taken Nitish Katara with them from Diamond Palace in a Tata Safari at around 12:15 am in the night intervening 16/ PW33 Ajay Katara is said to have seen the said Tata Safari at Hapur chungi. According to PW33 Ajay Katara, his scooter developed trouble and he had stopped on the road. A Tata Safari, which was behind him, also stopped. The appellant Vikas Yadav, who was on the Crl. M.B & Page 3 of 18

4 driver s seat told him to remove the scooter. PW33 Ajay Katara then went towards the Tata Safari vehicle and found four persons inside it. He recognized Vikas Yadav sitting in the driver s seat as well as the appellant Vishal Yadav and another person sitting in the rear seat. He also noticed a person wearing a red shirt / kurta sitting in the front seat. According to PW33 Ajay Katara, he knew the appellants and, therefore, could recognize them. 4. Thereafter, the Tata Safari vehicle along with its four occupants left Hapur chungi. Nitish Katara, who was allegedly the person in the red kurta / shirt and was sitting next to the appellant Vikas Yadav in the Tata Safari, was not seen alive thereafter. 5. On FIR No. 192/2002 was registered at Police Station Kavi Nagar, Ghaziabad under Section 364 IPC in which both the appellants were named. In the meanwhile, at about 9:10 am an unidentified body in a burnt condition was recovered on Shikarpur Road, near Khurja about 60 kilometers away from Hapur chungi. On , the post mortem examination was conducted at Bulandshahr. On , PW35 Sub-Inspector Anil Somania, the Investigating Officer received a phone call from PW4 Inspector Chander Pal Singh that a dead body had been recovered in his Crl. M.B & Page 4 of 18

5 jurisdiction. On , FIR No.216/2002 under Section 302/201 IPC was registered at Khurja. On , PW35 Sub-Inspector Anil Somania, the Investigating Officer along with Nitin Katara and Neelam Katara (brother and mother of the deceased Nitish Katara) went to identify the body and the mother identified the body as that of her son Nitish Katara. The body was brought to Delhi for finger printing and DNA analysis at the All India Institute of Medical Sciences. On , the appellants Vikas Yadav and Vishal Yadav were arrested under an Arms Act case at Dabra, Madhya Pradesh. On the Investigating Officer moved an application for transit remand under Section 364 IPC in that case in respect of the appellants Vikas Yadav and Vishal Yadav. The said application was opposed by the appellants. The learned counsel for the State of Delhi (Ms Mukta Gupta) pointed out that at that point of time FIR No. 192/2002 only had section 364 IPC mentioned therein but the opposition filed on behalf of the accused mentioned Sections 364 as well as Section 302 IPC. According to her, this is a circumstance which clearly indicates their complicity otherwise, how would they have known that they were also required for murder. On , the appellants were brought to Ghaziabad and thereafter they were interrogated and they made disclosure statements. On , it was found that the finger prints tallied with the finger prints on the Crl. M.B & Page 5 of 18

6 deceased s driving licence. On itself Section 302 IPC was added in the said FIR No. 192/2002. On the appellants were remanded for 24 hours and permission was also granted to the counsel for the accused to be present at the time of recovery. On , a hammer and a wrist watch were recovered at the instance of Vikas Yadav and Vishal Yadav, respectively. The said recoveries were effected from near the place where the dead body had been found. The watch was identified by Mrs Neelam Katara as that belonging to her son, the deceased Nitish Katara. 6. Mr U.R. Lalit, the learned senior counsel appearing on behalf of the appellant Vikas Yadav, submitted that this was a case which was entirely based on circumstantial evidence. The three circumstances which have been found to be against the appellants were (i) Motive; (ii) the last seen evidence of PW33 Ajay Katara; and (iii) the recoveries of the hammer and the wrist watch at the instance of the appellants Vikas Yadav and Vishal Yadav, respectively. According to Mr Lalit, the focal point of the entire case is PW33 Ajay Katara. According to him, his testimony cannot be believed. 7. The prosecution alleges that PW33 Ajay Katara saw the deceased Nitish Katara at about 12:20-30 am on in the company of Crl. M.B & Page 6 of 18

7 the appellants in the Tata Safari at Hapur chungi. According to the said witness, he is said to have written the number of the Tata Safari on a slip of paper. He stated that there were a number of vehicles which passed by them and two of them were police cars but he did not complain to police. Furthermore, on he came to know from the television that Nitish Katara was missing. But PW33 Ajay Katara s statement was recorded only on There is delay in the recording of his statement and this casts serious doubts on the testimony of PW33 Ajay Katara. 8. Mr Lalit submitted that the answer, which is said to be given with regard to the delay, is not at all plausible. The explanation was that PW33 Ajay Katara came to know of the involvement of the appellants on He went to the police station on and searched for the Investigating Officer, who was not available. According to Mr Lalit there is no evidence to support the alleged visit of PW33 Ajay Katara to the police station. A second visit was said to have made on when, once again, PW33 Ajay Katara stated that he could not meet the Investigating Officer. According to Mr Lalit there is no evidence to support this visit either. It is on the third visit on that PW33 Ajay Katara is said to have met the Investigating Officer and thereafter given his statement. It was then, as Crl. M.B & Page 7 of 18

8 stated by this witness, that he had showed the slip of paper to the Investigating Officer and tore it in front of the Investigating Officer. But, according to Mr Lalit, the Investigating Officer has not stated in his testimony that the slip was shown or torn in his presence. Mr Lalit submitted that the Tata Safari was already in the custody of police on and had been brought to the police station on Furthermore, when it was flashed on the television that Nitish Katara was missing on , why did the said witness PW33 Ajay Katara not inform the police? 9. Another circumstance pointed out by Mr Lalit was that PW33 Ajay Katara was an ordinary resident of Agra and his presence at Hapur chungi was not natural. He contended that although PW33 Ajay Katara stated that he was staying in Shahdara for about seven months and had gone to visit one Subhash at the PAC barracks at Ghaziabad and was allegedly returning from there when the interaction at Hapur chungi took place, the Investigating Officer did not verify as to whether PW33 Ajay Katara had, in fact, visited Subhash or not. Consequently, Mr Lalit submitted that PW33 Ajay Katara cannot be believed. 10. As regards the alleged recoveries effected at the instance of the appellants, Mr Lalit submitted that the dead body was found at 9:15 am Crl. M.B & Page 8 of 18

9 on He stated that from the evidence on record it is clear that PWs 4, 5 and 22 were at that place for about 4-5 hours. PW5 has stated that he had looked at the area paces near the dead body. He submitted that the hammer and the watch were allegedly recovered on , allegedly at the instance of the appellants. The hammer was said to have been recovered about 7 paces away from the point where the dead body was found and the watch, at a distance of 5 paces. This circumstance, according to Mr Lalit, puts a cloud on the recoveries. He submitted that the dead body was recovered on and the police had searched the area thoroughly and nothing was found then. Yet, the hammer and the watch were recovered on , allegedly at the instance of the appellants just 7 paces and 5 paces away from the dead body, respectively. According to Mr Lalit, the police already knew and had already recovered the hammer and the watch, the discovery/ recovery at the instance of the appellants was, therefore, a complete farce. 11. He submitted that there was every chance of acquittal in the appeal inasmuch as the last seen evidence was doubtful and the recoveries were also doubtful. He submitted that the cause of death was a single injury on the head and the body was burnt later, as indicated by the post mortem report. Mr Lalit submitted that this was a Crl. M.B & Page 9 of 18

10 good case for bail inasmuch as the appellant Vikas Yadav had already been in custody for seven years and insofar as the appellant Vishal was concerned, he had spent about 4-1/2 years in custody. 12. Lastly, he submitted that even the weapon of offence was not determined. It is alleged that the hammer was the weapon of offence. Yet, PW3 Dr Anil Singhal stated in his testimony that there was less possibility of hammer being the weapon of offence. He submitted that the Trial Court, referring to the said testimony of PW3 Dr Anil Singhal, came to the conclusion that it cannot be ruled out that the hammer was used. According to Mr Lalit, the finding should have been that the injury was caused by the hammer. This circumstance, according to him, was sufficient for establishing a prima facie case for acquittal. 13. Mr Dinesh Mathur, the learned senior counsel appearing on behalf of the appellant Vishal Yadav, contended that the alleged recovery of the hammer and in particular the watch was extremely doubtful. He submitted that the public recovery witnesses, namely, Raghu and Aslam, who were cited as witnesses by the prosecution, were not produced before Court. He also referred to Exhibit PW35/21, which is an application for remand made on the part of the prosecution on In that application, there is reference to the Tata Safari, Crl. M.B & Page 10 of 18

11 the weapon of offence and a mobile phone, said to be belonging to the deceased Nitish Katara, but, there is no reference to his watch. This circumstance, according to him, puts serious doubts on the recovery of the watch at the instance of the appellant Vishal Yadav. 14. Mr Dinesh Mathur also submitted that the case of Vishal Yadav was different from that of his cousin Vikas Yadav. He submitted, with reference to the question of motive, that Vishal Yadav was not Bharti Yadav s brother but, only a cousin. He submitted that there is nothing which has come in evidence to indicate that the appellant Vishal Yadav was interfering with the affairs in his cousin-vikas s family. According to him, there is no allegation of motive on the part of the appellant Vishal Yadav. 15. Mr Dinesh Mathur submitted that another important distinguishing factor between the case of Vishal Yadav and Vikas Yadav is the Section 161 Cr.P.C statement (Exhibit PW35/4) of one Kamal Kishore which was recorded on Kamal Kishore, who is stated to be a security guard in the house of Mr D. P. Yadav (appellant Vikas Yadav s father), apparently stated that he had seen the deceased Nitish Katara in the company of the appellant Vikas Yadav and his driver at the said residence between 1 to 1:30 am on Thus, according to Mr Dinesh Mathur, PW33 Ajay Katara Crl. M.B & Page 11 of 18

12 cannot be regarded as the person who last saw Nitish Katara alive. As per the statement of Kamal Kishore, the appellant Vikas Yadav and Nitish Katara stayed at the former s residence in Delhi for about half an hour. The driver Anil was relieved and he went to his quarters. Thereafter, the said Kamal Kishore is said to have seen the appellant Vikas Yadav and Nitish Katara leaving the house towards Connaught Place. According to Mr Dinesh Mathur, the said statement of Kamal Kishore can be looked into although Kamal Kishore had not been produced as a witness and, if it is looked into, it becomes clear that Kamal Kishore is the person who last saw Nitish Katara alive in the company of the appellant Vikas Yadav and not in the company of his client Vishal Yadav. Mr Dinesh Mathur also submitted that the appellant Vishal Yadav was granted bail by the Trial Court and he did not misuse the said liberty. He submitted that the appeal would take some time to be decided and since the appellant Vishal Yadav has already spent over 4-1/2 years in custody, he ought to be released on bail for the duration of the appeal. 16. The learned counsel appearing for the State of U.P submitted that PW33 Ajay Katara is the foundation of the prosecution and if his testimony is to be believed, there is no case for bail made out. According to him, PW33 Ajay Katara is a truthful witness and there is nothing which has been brought on record to shake his testimony with Crl. M.B & Page 12 of 18

13 regard to the fact that he had seen the deceased Nitish Katara in the company of the appellants at Hapur chungi. He also submitted that the recoveries of the hammer and the watch at the instance of the appellants Vikas Yadav and Vishal Yadav, respectively, were made pursuant to their disclosure statements. The hammer was used as the weapon of offence and, therefore, it was clear that the circumstances taken together along with the motive, established the guilt of the appellants. According to him, no case for bail was made out. 17. Ms Mukta Gupta appearing for the State of Delhi submitted that first of all, the motive for the crime clearly stood established. There were as many as 83 cards and letters between Bharti Yadav and the deceased Nitish Katara. There was evidence of intimacy between the two. Even in Bharti Yadav s bank account it was Nitish Katara s address which was given. There was evidence that Bharti Yadav had indicated that she wanted to get married but her family was not ready. Ms Mukta Gupta also submitted that the appellants absconded and disappeared from the scene of occurrence. She submitted that they even went ahead and arranged their arrest in an Arms Act case in Dabra, at Madhya Pradesh so as to aid them in evading arrest and subsequent conviction in the present case. She submitted that the antecedents of the appellant Vikas Yadav did not entitle him to the grant of bail. She submitted that he was involved in a murder case in Crl. M.B & Page 13 of 18

14 1991 but the same had been withdrawn by the Government of U.P in She submitted that in Jessica Lall s murder case also the appellant Vikas Yadav faced trial for offences under Sections 302/201/34 IPC. He was, however, acquitted of the murder charge but was convicted under Section 201/34 IPC and was sentenced to four years imprisonment. She submitted that while he was on bail in respect of the Jessica Lall s murder case, the present offence was committed by him. With regard to the appellant Vishal Yadav, she submitted that though he did not have the same antecedents as the appellant Vikas Yadav, he also did not deserve to be released on bail and he has spent only about 4-1/2 years in custody. 18. She submitted that the testimony of PW33 Ajay Katara was fully reliable and the reasons for the delay in the recording of his statement had been fully explained. On , PW35 Sub-Inspector Anil Somania, the Investigating Officer has clearly stated that he was away from the police station was also the day of Shivratri and PW35 Sub-Inspector Anil Somania, the Investigating Officer was once again away from the police station for the whole day on law and order duty. Thus, according to Ms Mukta Gupta, PW33 Ajay Katara s statement that he visited the police station on and Crl. M.B & Page 14 of 18

15 and on both occasions he could not meet the Investigating Officer PW35 Sub-Inspector Anil Somania stands corroborated. 19. She then referred to the call record of the calls made and received in the deceased Nitish Katara s mobile phone. The cell ID of Raj Nagar, which is near IMT Ghaziabad, is The cell ID of the area around Hapur chungi is Referring to the call records, she indicated that there is evidence of calls at this location at about 00:35 and 00:40 hours on This clearly co-relates with PW33 Ajay Katara s testimony that he saw Nitish Katara in the company of the appellants at Hapur chungi around that time. She submitted that even the testimony of PW11 Shivani Gaur, which had been used to discredit PW33 Ajay Katara inasmuch as she stated that she saw the deceased Nitish Katara at about 1-1:30 am, stood clarified by the answer to the court question in the course of her re-examination when she said that all her friends had left before 12: She submitted that Kamal Kishore s statement was recorded under Section 161 Cr.P.C. In order to examine him as a witness, process was sent but he did not appear and subsequently the Court issued non-bailable warrants for his appearance. Despite that he was not traceable and finally the prosecution had to give up Kamal Kishore Crl. M.B & Page 15 of 18

16 as a witness. She submitted that his Section 161 Cr.P.C statement was accepted although it was impermissible in law to do so. She submitted that the statement recorded under Section 161 Cr.P.C can only be used for contradiction as provided under Section 145 of the Indian Evidence Act, 1872 and only that portion of the statement, which is used for contradiction or confrontation, can be considered by the Court. She submitted that the case against Vikas Yadav and Vishal Yadav was the same. Both arrived at the marriage together, they went out together, they were last seen together with the deceased, they absconded together and they were arrested together at Dabra and both of them have also been named in the FIR in the first instance. 21. Mr P. K. Dey, the counsel for the complainant, was also heard. He adopted the arguments made by Ms Mukta Gupta, the learned counsel for the State of Delhi. In addition, he submitted that the statement of Kamal Kishore, who was a security guard at 15, Balwant Rai Mehta Lane, indicates that between 1 am and 1:30 am on , the appellant Vikas Yadav along with Nitish Katara and another person came to the said residence of Mr D. P. Yadav. According to Mr Dey, this is contrary to the documentary evidence which is available in the form of the call records. According to him, the call records proved that at 1:11 am the deceased Nitish Katara was Crl. M.B & Page 16 of 18

17 in Raj Nagar area of Ghaziabad. It is, therefore, clear that he could not be at Delhi at Balwant Rai Mehta Lane between 1 and 1:30 am. Therefore, even if the statement of Kamal Kishore can be looked into, which according to him could not be looked into, the same is highly unreliable in view of the documentary evidence in the form of record of the calls made and received in Nitish Katara s mobile phone. Mr Dey also submitted that no case for bail had been made out and, therefore, the applications be dismissed. 22. We have given our thoughtful consideration to the submissions made by the learned counsel and the materials pointed out to us. We feel that the appellants have not been able to make out a case for grant of bail. The Trial Court has examined the testimony of all the witnesses at length and has come to a conclusion that the three important circumstances, namely, motive, the last seen evidence of PW33 Ajay Katara and the recoveries of the hammer and the watch at the instance of the appellants are clearly established. According to the Trial Court there is also sufficient corroboration from other evidence to establish the guilt of the appellants. We also do not find any distinction, at this stage, between the case of the appellant Vishal Yadav and the appellant Vikas Yadav. Although Vikas Yadav has already spent seven years in jail and Vishal Yadav has been in custody Crl. M.B & Page 17 of 18

18 for over 4-1/2 years, the length of their incarceration cannot be a ground by itself for grant of bail. Consequently, we reject the bail applications. 23. It goes without saying that any observations made by us in this order are only for the purposes of considering the bail applications at this stage and are to be disregarded at the hearing of the appeal(s) on merits. BADAR DURREZ AHMED, J August 07, 2009 SR P. K. BHASIN, J Crl. M.B & Page 18 of 18