Nitish Katara-Trial Court Judgment

Transcription

1
IN THE COURT OF MS RAVINDER KAUR, ASJ,
NEW DELHI SC No. 78/02
STATE
VS
1 VIKAS YADAV S/o Sh. DP Yadav
R/o R 4/16, Raj Nagar
Ghaziabad (UP).
2 VISHAL YADAV S/o Late Sh Kamal Raj
R/o R5/45, Raj Nagar
Ghaziabad (UP).
FIR No. 192/02
PS Kavi Nagar, U/s 364/302/201/34 IPC
J U D G M E N T
1. Both the accused namely Vikas Yadav
son of Sh DP Yadav R/o R 4/16, Raj Nagar,
Ghaziabad, UP and accused Vishal Yadav son
late Sh. Kamal Raj Yadav R/o R 5/45, Raj
Nagar Ghaziabad, UP have been sent up for
2
trial U/s 364/302/201/ 34 IPC.
2.
The facts as set out in the charge sheet
and emerging from the record and documents
are as follows:
i) The prosecution case is that on 17.2.02
at about 1:15pm the complainant Smt Neelam
Katara alongwith Ajay Prasad R/o AC H No.
500 Vasant Kunj New Delhi reached PS Kavi
Nagar Ghaziabad and lodged a written
complaint to the effect that on 16.02.02 her son
Nitish Katara (now deceased) had attended the
marriage of Shivani d/o Late Sh. BK Gaur r/o
58 Model Town, West Ghaziabad and Nitish
took meals alongwith his friends Diwakar and
Gaurav Gupta. It is further mentioned in the
complaint that Bharat Diwakar informed that
while they were taking meals, Vishal s/o Late
Sh. Kamal Raj Yadav came to them and Rohit
3
s/o Sh BK Gaur told that Vikas s/o Sh DP
Yadav and Vishal s/o Late Sh Kamal Raj Yadav
R/o Ghaizabad had arrived there at 12/12.30
mid night. It is further mentioned in the
complaint that Vishal and Vikas took Nitish
outside while talking. Thereafter when Bharat
Diwakar could not see Nitish so he came back
to their house. She expressed in her complaint
that she suspected happening of some untoward
incident.
ii)
It is further mentioned in the complaint
that her son Nitish and Bharti Yadav d/o Sh D
P Yadav studied together in IMT in the year
1998 2000 and they were friends but Vishal
and Vikas did not like their friendship. She
requested the police authority to record her
complaint and to take necessary action.
iii)
On the basis of the aforesaid complaint
4
case FIR No. 83 Ex. PW 1/2 case No. 192/02
U/s. 364 IPC was registered by PW1 HC
Netarpal Singh. The investigation was handed
over to PW 35 SI Anil Somania PS Kavi Nagar.
He started the investigation with the recording
of the statement of HC Netarpal Singh U/s. 161
Cr.PC. Thereafter the detailed statement U/s 161
CrPC of the complainant Smt. Neelam Katara
was recorded, whereby she stated that on
16.02.02 her son Nitish Katara (now deceased)
and his friend Bharat Diwakar left the house at
9pm for attending the marriage of Shivani Gaur
at Diamond Place Ghaizabad. When Nitish
did not return home, Bharat Diwakar told her
that at 12/12.30 midnight Nitish while talking
to Vishal son of Late Sh Kamal Raj Yadav had
gone out of the Diamond Palace and Rohit son
of Sh B K Gaur R/o. 58, Model Town West
5
Ghaziabad had also told him that Vikas s/o Sh
DP Yadav and Vishal son of Late Sh Kamal
Raj Yadav had arrived at Diamond Palace at 12/
12.30 mid night and while talking to Nitish had
taken him outside. She further stated that
deceased had friendship with Bharti Yadav d/o
DP Yadav R/o Rajnagar since they both studied
together in IMT Ghaizabad in the year 1998
2000. Her son was on visiting terms to the
house of Bharti and were close friend and
perhaps this was not liked by Vishal and Vikas.
For this reason she apprehended the happening
of some untoward incident with her son Nitish
Katara by accused Vishal and Vikas. She
further disclosed that her son was wearing red
coloured kurta , white churidaar pajama and
a shawl and Esprit watch in his hand. A poster
bearing the photograph of the deceased Nitish
6
Katara Ex.PW 1/DA under the title Talash
Apharit (search for abducted person) was
issued. Thereafter the statement of Bharat
Diwakar son of Sh RK Diwakar r/o C 24 Shivaji
Nagar PS Habibganj Bhopal (MP) was recorded
U/s 161 Cr PC who stated that he had taken
admission in IMT Ghaziabad for MBA course in
the year 1998 and Nitish Katara, Gaurav Gupta,
Bharti d/o Sh DP Yadav were also studying in
IMT alongwith him, whereas Shivani Gaur was
doing Executive MBA course from IMT and
they were all friends and were on visiting terms
with each other and they also used to attend
functions at each other's place. Their course
ended in the year 2000 and thereafter he
started working as Manager MICOWOSH at
Ahmedabad but still they used to talk to each
other on telephone. He stated that the
7
marriage of Shivani Gaur was fixed for
16.02.202. To attend the marriage he had
reached Delhi in the morning of 15/02/02 by
train and went to the house of Nitish. On
15.02.02 in the evening the ladies sangeet was
organised at the house of Shivani Gaur which
was attended by him alongwith Nitish at her
residence at Ghaziabad. Besides, their friend
Bharti Yadav, her sister Bhawna Yadav and their
cousin brother Rakesh @ Rocky were also
present there and all of them had danced in
the ladies sangeet. It is stated that on 16.2.02
they had reached Diamond Palace Ghaizabad
at about 10.15 pm to attend the marriage of
Shivani Gaur. After meeting Shivani Gaur and
her family members he alongwith the deceased
and Gaurav Gupta reached the garden for
meals and while they were taking meals at
8
about 12 mid night one tall and fair person
came there and told the deceased ''Maine
Aapko Kahin Dekha Hain,
Aapka Naam Kya
Hain''. At this deceased disclosed his name to
the said person and they both started talking to
each other at some distance from Bharat
Diwakar and Gaurav and while so talking that
tall and fair person took the deceased outside
the Diamond Palace. Bharat Diwakar and
Gaurav waited for him but he did not return
and during this period he enquired about the
tall and fair person and was told by the
persons that he was Vishal Yadav r/o Raj
Nagar. Thereafter he tried to contact deceased
on his mobile No. 9811283641 but his mobile
was found switched off, as such he could not
contact him. At about 2 am Gaurav Gupta
went back. Bharat Diwakar waited for the
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deceased till 2.30 am at the Diamond Palace
and thereafter he returned to the house of
deceased at Delhi in the taxi and went to sleep.
Till 5am when Nitish did not return home, his
mother Smt Neelam Katara was worried. Then
she asked Bharat Diwakar about the deceased
and he told her that Nitish had stayed back at
Ghaziabad at night. On 17.02.02 Bharat Diwakar
went to Ghaizabad and made enquiries from PS
Kavi Nagar about Nitish but did not get any
information. It is stated that thereafter Smt
Neelam Katara also went to PS Kavi Nagar
Ghaziabad and lodged the FIR regarding
missing of her son. This witness also stated to
the police that on that day Nitish was wearing
red coloured kurta, white churidaar pajama and
had wrapped a white shawl. After recording of
the statement of this witness the site ie
10
Diamond Palace was inspected by the SI Anil
Somania at the instance of Bharat Diwakar
and a siteplan Ex.PW 35/1 of Diamond Palace
was also prepared. IO also recorded the
statements of Sandeep Goyal, the owner of
Diamond Palace U/s 161 Cr PC of Jai Prakash
Pandey, the security guard at the Diamond
Palace on the night of the incident who stated
that his duty was at the main gate of Diamond
Palace on 16.02.02 as a marriage was being
celebrated there. At about 12/12.30 mid night
he saw 3/4 boys who came out of the hall and
sat in a long car and one of them was
wearing red coloured kurta, churidaar pajama
and white shawl. He also stated that those boys
shaked hands with some boys who were
standing outside and thereafter they went away
in the long car at a fast speed towards West
11
direction but this witness could not tell the
number and colour of the vehicle in which
those boys had gone and he explained that
since it was a marriage function and there were
several vehicles so he did not pay much
attention to the colour and number of the
vehicle. iv)
On the same day the houses of both
the accused Vishal Yadav and Vikas Yadav were
raided but neither the accused persons nor
Nitish could be traced out. Besides, they were
searched at other places also by the police but
met with no success.
v) Thereafter again on 18.02.02 search
was conducted for Nitish as well as both the
accused persons and in the process the IO
reached the official residence of Sh DP Yadav
at 15 Balwant Rai Lane New Delhi (since he
12
was MP during the relevant period) where
Kamal Kishore, the security guard of Sh. DP
Yadav met him and was brought to PS Tilak
Marg where he was interrogated and memo
interrogation was prepared. Besides his
statement U/s 161 Cr PC was also recorded
to the effect that on intervening night of
16/170202 at about 1/1.30 am accused Vikas
and driver Anil alongwith one another person
of fair complexion, clean shave wearing red
coloured long kurta, churidaar pajama and
white coloured shawl came there in a long car
with high back and they stayed there for half
an hour. Afterwards Vikas and the person in
red coloured kurta went away in the same
vehicle. Whereas the driver Anil went and
slept in his room. He also stated that the
vehicle was driven away by Vikas, whereas the
13
person in red kurta sat next to him in front. vi)
During the course of investigation
statement of Bharti Yadav U/s 161 Cr. PC
was recorded which revealed that of Ms
Bharti Yadav was a student of IMT Ghaziabad
alongwith deceased Nitish Katara, Bharat
Diwakar, Gaurav Gupta and Shivani Gaur
during the year 19982000 and they were all
very close friends. It also revealed that the
friendship between Ms Bharti Yadav and the
deceased converted into a love affair. Even
after completion of their course in the year
2000 from IMT they both remained in touch
with each other, used to roam around together
and got themselves photographed, exchanged
gifts and Ms. Bharti Yadav had gifted Esprit
wrist watch to the deceased in Dec 2001.
They both wanted to marry each other. The
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deceased had already spoken to his mother for
their marriage, whereas their affair was known
to the Mami and Bua of Ms Bharti Yadav and
she was told by them that they would speak
to Sh DP Yadav for her marriage with Nitish
only after the elections of Vikas. It is further
mentioned in her statement U/s 161 Cr.PC that
on 16/2/02 the marriage of Shivani was fixed
where she alongwith her family, Bharat
Diwakar, Nitish Katara, Gaurav Gupta and Yash
Tomar were invited to attend the marriage. A
day prior to the marriage , 'mahila sangeet' was
arranged at the residence of Shivani Gaur
which was attended by her and her friends
where they had danced together. On 16/2/02
the marriage of Shivani Gaur took place at
Diamond Palace, Kavi Nagar, Ghaziabad which
was attended by her alongwith her sister
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Bhawna Yadav, her mother, her brother accused
Vikas Yadav, her bua's son accused Vishal Yadav
and Sukhdev Pehalwan resident of Dewaria,
working in their liquor office at Bulandshahar.
The marriage was also attended by Bharat
Diwakar, Nitish Katara, Yash Tomar and Gaurav
Gupta. She got clicked photographs with Bharat
Diwakar, Nitish Katara and Gaurav Gupta on
the stage and had also danced in the marriage
with Nitish Katara. At 1:30am she came to know
that Nitish was called away by the accused
persons and their coaccused Sukhdev, so she
became upset. She searched for them in the
Diamond Palace but could not trace them. It is
further mentioned in her statement that accused
persons had come there in Tata Safari. At about
2:15am she called from her mobile No.
9810038469 to the landline Nos installed at her
16
residence as she was suspecting that accused
persons may not commit some untoward
incident with Nitish Katara as they had not
liked her dancing with Nitish Katara and her
getting the photographs clicked with him.
vii)
It also revealed during investigation that
on 16.02.02 the marriage of Shivani Gaur was
attended by both the accused persons namely
Vishal Yadav and Vikas Yadav alongwith their
co accused Sukhdev Pehalwan r/o Dewaria,
an employee of Sh DP Yadav in the office of
liquor at Bulandshahar . Besides, the marriage
was attended by Ms Bharti Yadav, her sister
Bhawna Yadav and their mother Smt Umlesh
Yadav. The marriage was videographed and
photographed. The marriage function was
attended by 600 to 700 persons. viii)
It further revealed during investigation
17
that both the accused Vikas and Vishal Yadav
and their co accused Sukhdev Yadav took
deceased in a Tata Safari from Diamond Palace
towards Hapur chungi and their vehicle was
stopped by police officials namely Ct Satender
Pal Singh and Ct. Inderjeet Singh near Diamond
Palace for a routine checking. At that time
accused Vikas Yadav was driving the said
vehicle, Nitish was sitting besides him on front
seat, whereas accused Vishal Yadav was sitting
behind the deceased in the rear seat and co
accused Sukhdev was sitting behind accused
Vikas Yadav on the rear seat.
ix)
During investigation it further revealed
that on that day around 12.30 mid night after
some distance near crossing of Hapur Chungi
Nitish was spotted in the company of accused
Vikas Yadav, Vishal Yadav and their co accused
18
Sukhdev Yadav travelling in Tata Safari bearing
registration No. PB 07H 0085 when accused
Vikas Yadav had an altercation with PW33 Ajay
Katara whose scooter broke down on the road
and he was asked to remove the scooter from
the road immediately. As per the statement of
Ajay Katara recorded U/s 161 Cr PC by the
police on 18.3.2002 all the accused persons
were known to him prior to the incident as
accused Vikas Yadav is the son of Sh DP
Yadav, the then Member Parliament, accused
Vishal Yadav was the cousin brother of
accused Vikas Yadav and accused Sukhdev
Pehalwan was an employee of Sh DP Yadav. x)
During investigation it further revealed
that on 17.02.2002 deadbody of an unknown
person was found lying naked in burnt
condition at Shikarpur Road within the
19
jurisdiction of PS Kotwali and it was spotted by
PW 23 Virender Singh who gave information in
this regard to the PS Khurja which was
recorded vide GD No. 12 Ex. PW 4/A. On this
information PW4 Inspt CP Singh of PS Khurja
reached the place where deadbody was lying.
The photographs Ex.PW 4/2 and Ex.PW 4/3 of
the deadbody were taken. Panchnama Ex.PW
3/2A was prepared and lateron the siteplan
Ex.PW 4/4 of the place was also prepared. It
was found that left hand, fingers and palm of
the deadbody were not burnt. xi)
The deadbody was removed to the
mortuary of the District Hospital Bulandshahar
in sealed condition through PW 5 Ct Mudasar
Ali and Ct Mahender Singh for postmortem.
Efforts were made for the identification of the
deadbody.
20
xii) The postmortem was conducted on
the deadbody of unknown person by Dr Anil
Single at District Hospital Bulandshahar UP
on 18.2.02 and the deadbody was kept in the
mortuary at Bulandshahar for identification. As
per the postmortem report the cause of death
was head injury. The postmortem report is
Ex.PW 3/3.
xiii)
On the basis of the aforesaid
postmortem report case FIR No. 216/02 U/s
302 /201 IPC was registered with PS Khurja
Nagar on 19/02/02. On the same day after
coming to know about the recovery of the
deadbody of an unknown person by the police
of PS Khurja Nagar SI Anil Somania reached
there in the evening but could not meet Inspt
CB Singh as he was not available at that time.
On 21.2.02 the complainant alongwith her
21
younger son Nitin and other family members
reached mortuary Bulandshahar on receipt of
information from PS Kavi Nagar that a
deadbody of an unknown person similar to the
description of her son was recovered from
Shikarpur Road in a burnt condition. From
the hands and feet and the structure of the
deadbody she identified the same to be of her
son Nitish but since the other family members
were not fully satisfied, as such to be very sure
she asked for DNA test and finger prints
examination.
xiv)
SI Anil Somania moved an application
on the same day before CJM Bulandshahar for
seeking possession of the deadbody and
transferring the deadbody to AIIMS hospital
for the purpose of finger print and DNA as
there was no facility to preserve the deadbody.
22
The application was allowed by CJM
Bulandshahar UP and on the same day ie
21.2.02 the body was removed to AIIMS hospital,
New Delhi and was kept in freezer No. 8. On
22.2.02 in the presence of the IO finger prints
expert of Delhi Police namely Chet Ram
took finger prints of the left hand of the
deadbody in AIIMS hospital. On the same day
Chet Ram also obtained standard finger prints
of the deceased Nitish Katara from RTO Office
at Sarai Kale Khan New Delhi, from where a
driving licence was issued to the deceased
Nitish Katara. On the same day ie 22.2.02
blood samples of Sh Nishit Katara and the
complainant Neelam Katara ie parents of
Nitish Katara were taken for DNA test, in
compliance of the order of CJM Bulandshahar
( UP). On the same day sample tissues from
23
the deadbody for the purpose of DNA test
were taken and all the samples were sent to
CFSL Calcutta for analysis on 25.2.02 through
SI RC Makholia. xv)
As per the report of the finger prints
experts dtd 25.2.02, PW 2 SI Chet Ram
( Finger Print Expert) with Finger Print Bureau
recorded the left hand finger impressions of
the said Unidentified deadbody on 22.02.02.
As per the result of comparison
recorded left index finger impressions of the
said unidentified deadbody were compared
with the specimen left index finger impression of
Sh Nitish Katara s/o Sh Nisheeth M Katara
r/o 7 Chemsford Road New Delhi 110055
( Licence No. P06022000120296) available with
Deptt of Transport Govt. of NCT, Delhi and
were found identical.
24
On the basis of the finger prints expert
report Section 302/201/34 IPC were added to
the FIR on 25.2.02, as the identity of the body
was established beyond any reasonable doubts,
On 26.2.02 an information was sent to CJM
Ghaziabad (UP) about the addition of the offences
U/s. 302/201/34 IPC in FIR bearing No. 192/02
of PS Kavi Nagar.
xvi)
On 22.2.02 letter Ex PW 8/A was sent
by Sh AK Raghav SP City Ghaziabad to the
director of AIIMS requesting for DNA finger
printing of suspected deadbody of deceased
Nitish Katara in terms of the order of the CJM
Bulandshahar dtd. 21.2.02 Ex. PW 8/C. This letter
was marked to PW 8 TD Dogra vide endorsement
Ex. PW 8/B by the director AIIMS. Thereafter
under the supervision of PW 8 DR. TD Dogra
of AIIMS hospital blood sample of Sh NM Katara
25
and Smt Neelam Katara were collected by PW 10
Dr Sanjeev Lalwani . From the unknown deadbody suspected
to be of Nitish Katara son of Sh NM Katara the
following samples were collected from the
deadbody:
a Entire right femur bone ( Weight
Aprox. 900gm).
b Piece of Right Calf muscle (Weight
80gm Approx.)
c Piece of Right Lung (Weight 20gm
Approx.)
d Pieces of kidney of both sides (Weight
15gm each Approx,)
e Piece of Heart muscle ( Weight 20gm
Approx.)
f Approx.)
Piece of liver tissue ( Weight 25gm
26
g Pieces of spleen ( Weight 25gm
Approx.)
h Blood sample of gauze piece from
right side of the heart. On 25.2.02 the blood samples of Sh
NM Katara and Smt Neelam Katara alongwith
the sample collected from the unidentified
deadbody were sent to the office of Central
Forensic Science Laboratory, Bureau of Police
Research & Development, Ministry of Government
Home Affair, Government of India, Calcutta in
one sealed thermocol box, three sealed paper
packets and one sealed cloth packet which were
sealed with the corresponding seal impression
through SI RC Makholia. The three sealed
paper packets were marked A,B and C in the
Laboratory and contained Exhibit A, Exhibit B
and Exhibit C respectively. The sealed thermocol
27
box contained Exhibit E, Exhibit F, Exhibit G,
Exhibit H, Exhibit I and Exhibit J .
The
description of the exhibits is as follows:
Exhibit A: Blood Stain I A white gauze piece having large reddish
brown stains, said to be blood sample of Mr
NM Katara ( Blood donor card annexure I). Exhibit B: Blood Stain II
A white gauze piece having large reddish
brown stains, said to be blood sample of Mrs
Neelam Katara ( Blood donor card annexure II).
Exhibit C: Blood Stain III
A white gauze piece having large reddish
brown stains, said to be blood sample of body
(Cl. For. Med. No. 14/2002)
Exhibit D: Long Bone A human femur bone of right side, said to be of
body. (Cl. For. Med. No. 14/2002).
28
Exhibit E: Tissue Sample l
A brown coloured tissue, said to be piece of
muscle of body( Cl. For, Med. No. 14/2002)
Exhibit F: Tissue Sample Il
A red coloured tissue, said to be piece of lung
of body( Cl. For, Med. No. 14/2002)
Exhibit G: Tissue Sample Iil
kidney of body( Cl. For, Med. No. 14/2002)
Exhibit H: Tissue Sample lV
A reddish brown coloured tissue, said to be
piece of heart of body( Cl. For, Med. No.
14/2002)
Exhibit I: Tissue Sample V
liver
of body( Cl. For, Med. No. 14/2002)
Exhibit J: Tissue Sample Vl
29
A red coloured tissue, said to be piece of
spleen of body( Cl. For, Med. No. 14/2002)
Exhibit C:Blood Stain III, Exhibit F: Tissue
Sample II and Exhibit J: Tissue Sample VI
were selected for DNA Profiling Exhibit D: Long
Bone, Exhibit E: Tisue Sample I, Exhibit G:
Tissue Sample III, Exhibit H: Tissue Sample IV
and Exhibit I: Tissue Sample V were not
analysed as they originated from the same
source.)
RESULTS OF THE EXAMINATION
Small portions of Exhibit A: Blood Stain I,
Exhibit B: Blood Stain II, Exhibit C: Blood
Stain III, Exhibit F: Tissue Sample II and
Exhibit J Tissue Sample VI were subjected for
DNA isolation by organic extraction method,
High Molecular Weight DNA could be isolated
from Exhibits A, B & C while degraded DNA was
30
recovered from Exhibits F & J.
DNA from the above mentioned exhibits was
subjected to multiplex PCR reaction for fifteen
STR loci & amelogenin using commercially
available Power Plexd 16 kit. Allelles of all loci
in the Exhibits amplified successfully. The
amplified products alongwith controls were run
on Automated DNA Sequencer and analysis was
carried out using GeneScan, Genotyper and
Power Typer 16 Macro softwares with respect to
standard ladder. The resultant allele distribution
for the studied loci in the different exhibits is
shown in Table:
Locus.M Control Internal Exhibit Exhibit Exhibit C:
arker
9947A Control A:
B: Blood Blood
(AKS)
Blood Stain II Stain III
Stain I (said to (said to
be of be body)
(said to
Mrs.
be of
Neelam
Mr NM
Katara)
Katara)
D3S13 14,15
58
14,16
THOI 8,9,3
6,9,3
Exhibit Exhibit
F:
J:
Tissue
Sample
II (said
to be
of
body)
Tissue
Sample
VI (said
to be of
body)
16
16
15,16
16
6 7,9,3
16
6,7
6,7
6,7
31
D3S13 14,15
58
D2lS1
1
14,16
15,16
16
28,32.2 30.2,
30
33.2
D18S 15,19
51
17
7,13
7,16
DSS8
18
12,14
10,11
11
D13S3
17
11
29, 30.2
7,18
8,11
17
7,18
11
17
7,18
11
11
8,11
8,11
8,11
10,11
11,12
11,12
11,12
10,11
10,11
10,11
10,11
11,13
10,13
10,13
10,13
11
8,9
D16S 11,12
539
9,11
CSFI 10,12
PO
11,12
12
11
12,13
12
VWA 17,18
10,11
10,11
9,11
10,11
10,11
17
10,11
14,17
16,17
17,19
17
17
10,17
13,16
13,15
13,15
13,15
13,15
8,10
9,11
9,10
9,10
9,10
22,24
22,24
xy
xy
13
TPOX
FGA
11,18
11
D7S8 10,11
20
D8S11
79
16
16,17
14
8,12
16
29, 31.2 29, 30.2 29,
30.2
14,17
Penta 12,13
E
Penta
D
16
8 8,9
23,24
Amel xx
ogeni
n
20,23
21.2,24
xy
xy
22 22,24
xx
xy
From the above results, it is observed that:
a.
the genetic profiles of Exhibit C:
Blood Stain III, Exhibit F: Tissue Sample II and
Exhibit J: Tissue Sample VI are identical and
32
belong to a male individual.
b.
one of the allele of the studied
amplified loci of body ( Exhibit C: Blood Stain
III, Exhibit F: Tissue Sample II and Exhibit J:
Tissue Sample VI ) matches with one of the
allele of Exhibit B: Blood Stain II ( said to be of
Mrs. Neelam Katara) c.
the non maternal alleles of the studied
amplified loci of body ( Exhibit C: Blood Stain
III, Exhibit F: Tissue Sample II and Exhibit J:
Tissue Sample VI ) are matching with one of the
allele of Exhibit A: Blood Stain I ( said to be of
Mr. NM Katara)
d.
the likelihood of Mrs. Neelam Katara
( source of Exhibit B: Blood Stain II), than any
other person at random, contributing maternal
alleles of the studied loci to the body ( source of
Exhibit C: Blood Stain III, Exhibit F: Tissue
33
Sample II and Exhibit J: Tissue Sample VI) is
99,999 approx. e.
the likelihood of Mr. N.M Katara
( source of Exhibit A: Blood Stain I), than any
other person at random, contributing non
maternal alleles of the studied loci to the body
( source of Exhibit C: Blood Stain III, Exhibit F:
Tissue Sample II and Exhibit J: Tissue Sample
VI) is 99,999 approx. From the above observations, it is
concluded that: the body ( source of Exhibit C: Blood
Stain III, Exhibit F: Tissue Sample II and
Exhibit J: Tissue Sample VI forwarded vide Cl.
For. Med. No. 14/2002) belongs to biological
son of Mrs. Neelam Katara ( source of Exhibit
B: Blood Stain II) and Mr. NM Katara ( source
of Exhibit A: Blood Stain I).
34
On 6.3.2002 DNA report was received
from CFSL Calcutta through SI RC Makholia
which established the identity further that the
sample tissues of the deadbody were belonging
to biological son of Mrs. Neelam Katara and
her husband Mr Nishit Katara. xvii) Since during investigation the
accused persons were named in the FIR dtd.
17.2.02 of PS Kavi Nagar, Ghaziabad, so the raids
were conducted by the police in their search
regularly, at their known and given addresses at
different places but they were not traceable and
they were absconding from the night of incident
itself. On 20.2.02 CJM Ghaziabad (UP) on the
report of the police issued process U/s. 82 Cr. PC
against accused Vikas Yadav and Vishal Yadav .
xviii)
On 23.2.02 it was reported in the TV
and the media that both the accused Vikas
35
Yadav and Vishal Yadav, were arrested by
police of PS Dabra (MP) under Arms Act, on
that day at about 4.15 am. Both the accused
persons disclosed before Dabra police that
they were involved in the abduction of Nitish
Katara. Initially they tried to conceal their
identity by giving false names to Dabra police.
Separate cases were registered at PS Dabra
(MP) against both the accused persons under
Arms Act. xix)
After coming to know about the arrest
of the accused persons at Dabra ( MP), SI Anil
Somania, IO of this case alongwith other
members of police party reached Dabra (MP) at
11 pm on 23.2.02 for taking the custody of the
accused persons. On 24.2.02 Court at Dabra
granted two days transit remand of the accused
persons for producing the accused persons
36
before the Court at Ghaziabad. At about
3.30pm custody of both the accused persons was
taken by SI Anil Somania on that day after
their medical examination. xx)
On 25.02.02 police party alongwith
the accused persons reached at Ghaziabad at
about 5 am and produced both the accused
persons before CJM Ghaziabad (UP). Accused
persons were remanded to judicial custody on
that day. On the same day ie 25.02.02 SI
Anil Somania moved an application before
CJM Ghaziabad (UP) for permission to record
the statement of the accused persons in the jail
as in State of UP, accused cannot be
interrogated / examined, without the
permission of the Court. xxi) On 25.02.2002 SI Anil Somania
recorded the statement of both the accused
37
persons separately in jail. Both the accused
persons disclosed that love affair was going
on between Ms. Bharti Yadav and the deceased
for a long time and with the passage of time
it came to the knowledge of the society and
they were feeling humiliation and this was not
acceptable to them. As such when they saw
Nitish Katara in the marriage they both i e
accused Vikas Yadav and Vishal Yadav
thought that it was the best opportunity which
they may not get in future. Then they had
dinner immediately after the arrival of the
barat. Nitish Katara was having food alongwith
his friends and then Vishal Yadav was sent
by the accused Vikas Yadav to bring Nitish
Katara outside. After he was brought outside
by accused Vishal then they made him sit on
the front seat of their Safari car at about 12
38
am. Accused Vikas drove the car, whereas
accused Vishal and co accused Sukhdev
Pehalwan sat on the back seat of the car and
while they were going to Khurja, in between
Bulandshahar and Khurja co accused Sukhdev
Pehalwan and accused Vishal Yadav pressed
down Nitish Katara, whereas accused Vikas
Yadav immediately stopped the car on the side
of the road and gave a hard blow of a small
hammer on the head of Nitish Katara due to
which he became unconscious and after few
minutes he died. It is further disclosed that
thereafter they took his deadbody in the car
to Khurja Phasu Hill and about one km away
from Shikarpur Teeraha they put his deadbody
along side of the road and accused Vishal
removed mobile from the pocket of the
deceased and the wrist watch from his hand
39
and concealed th same in the bushes standing
along side the road, whereas Vikas Yadav took
the hammer from the car and concealed the
same inside the bushes standing nearby.
Accused Vikas Yadav took out diesel from the
car through pipe and poured the same on
the deadbody of Nitish Katara and burned the
same. Accused Vikas Yadav disclosed that he
could get the hammer recovered from the place
where it was concealed. Similarly accused
Vishal disclosed that he could recover the wrist
watch and the mobile phone from the place
where these were concealed and they could
also point out where the deceased was
murdered and his body was burnt lateron by
them. They could also get recovered Safari
Car which was hidden by them in Alwar
Rajasthan. 40
xxii)
On 25.02.02 itself accused Vikas Yadav
gave an interview to the media that on 16/17
0202 he had a minor quarrel with them
(Unse) outside Diamond Palace. The word
'Unse' is used in context of Nitish Katara .
xxiii)
On 26.02.02 SI Anil Somania moved
an application before CJM Ghaziabad ( UP) for
the police custody of both the accused persons
and on 27.2.02 twenty four hours police custody
remand was granted by CJM Ghaziabad
effective from 28.2.02 at 9 am till 1.3.02 (9
am). The accused persons were also allowed by
the Court to keep one lawyer with them during
police custody remand on their separate
applications. xxiv)
On 28.2.02 both the accused persons
were taken in police custody by SI Anil
Somania from the jail after their medical
41
examination, as directed by the Court.
Thereafter both the accused persons led the
police party near Railway crossing of
Aughwarpur and pointed the place where
Nitish Katara was murdered by them. SI Anil
Somania prepared Ex.PW35/23 the siteplan of
the place. Then the accused persons led the
police party to T point of Phasu and Shikarpur
road and pointed out blackish spot on the
ground and told that the deceased was burnt
there. Accused Vikas Yadav got recovered a
hammer Ex.Pl from the nearby bushes and
accused Vishal Yadav got recovered a wrist
watch Ex.PW7/Article A2 from the bushes/fields.
SI Anil Somania prepared site plan Ex. PW35/24
of each spot and sealed the hammer and wrist
watch separately at the spot. The recovery of
hammer and wrist watch was effected in the
42
presence of Sh Satpal Yadav, advocate for the
accused persons and public witnesses Raghu
and Aslam. The sealed parcels of hammer and
wrist watch were seized vide a recovery memo
Ex.PW34/1 prepared by the IO SI Anil
Somania. A copy of the recovery memo was
received by Sh Satpal Singh Yadav, advocate at
the spot. Both the accused persons also
received a copy of the recovery memo
separately under their signatures on the spot. xxv)
Thereafter on the same day ie on
28.2.02 both the accused persons led the police
party to House No 2 Maharaja building Alwar
(Rajashtan) for the recovery of Tata Safari
vehicle and cell phone of the deceased Nitish
Katara but no vehicle was recovered from there.
From there both the accused led the police
party to Sariska Palace, Alwar for the recovery
43
of Tata Safari, but vehicle was not recovered
from there too. The accused persons further led
the police party to a house at Shanti Kunj in
Alwar for the recovery of Tata Safari but again
vehicle was not recovered from there. SI/ IO
Anil Somania prepared search memos of all
those places Ex.PW35/25, PW35/46 and PW35/47,
which were searched for the recovery of Tata
Safari and cell phone of the deceased in
pursuance to the disclosure statements of the
accused persons. The police party alongwith
the accused persons and their lawyer returned
from Alwar (Rajasthan) after midnight of
28/02/02 / 01/03/02 and after the medical
examination of the accused persons as directed
by the Court, they were put in lockup of PS
Kavi Nagar. The recovered hammer and wrist
watch were deposited by IO in malkhana of
44
the PS Kavi Nagar in sealed condition.
xxvi)
On 01/03/02 both the accused persons
were produced in the Court after their medical
examination and application was moved by the
IO Anil Somania for grant of ten days police
custody remand for the recovery of Tara Safari
and cell phone of the deceased, however the
application was dismissed by the CJM
Ghaziabad vide order dtd. 2.3.02. The order of
the CJM was challenged by the police in the
Court of District & Sessions Judge Ghaziabad
through a revision petition. The Ld. Session
Judge Ghaziabad partly allowed the petition
and directed the CJM Ghaziabad to hear the
police remand application of the IO again
keeping in view that period of 24 hours of
police custody was not sufficient to effect the
recovery of Tata Safari and cell phone of the
45
deceased in pursuance to the disclosure
statements of the accused persons. The said
order was passed by Ld. Session Judge on
6.3.02.
xxvii)
On 06.03.02 both the accused
persons were taken to Dabra (UP) by SI JK
Gangwar in compliance of the order passed
by the Magistrate at Dabra.
xxviii)
On 08.03.02 CJM Ghaziabad passed
order for the police custody remand of the
accused persons for 48 hours after hearing the
investigating agency, as per the order of the
Session Judge Ghaziabad dtd. 06/03/2002 the
police custody remand was to be effective from
9.3.02 at 2pm onwards. IO SI Anil Somania
rushed to Dabra (MO) on 8.3.02 itself and
after reaching there moved an application
before the Magistrate at Dabra for the custody
46
of the accused persons in compliance of the
order of CJM Ghaziabad (UP) dtd. 08.03.2002.
xxix)
As per the prosecution the lawyers of
the accused persons delayed the hearing of the
application on the ground that they have
challenged the order of CJM Ghaziabad (UP) in
Allahabad High Court and there was possibility
of a stay order from the Hon'ble High Court.
Even affidavits were filled by the lawyers of
the accused persons but no stay order was
received/ passed by the High Court so at 6.40
pm on 9.3.02 Magistrate at Dabra allowed the
application of SI Anil Somania for handing
over the custody of he accused persons to him.
However jail authority at Dabra (MP) refused
to hand over the custody of the accused
persons to the IO on the ground that the jail
had already been closed. 47
xxx)
On 10.3.02 at about 9.30am custody of
the accused persons was given to the IO SI Anil
Somania by the jail authorities after their
medical examination. From Dabra police party
alongwith the accused persons left for
Chandigarh for the recovery of Tata Safari but
when they reached at Agra (UP), accused
persons disclosed that Tata Safari and cell
phone can be recovered from Shamshan Ghat,
near taxi stand at Panipat (Haryana). Accused
persons led the police party to Shamshan Ghat
near taxi stand Panipat but nothing was
recovered from there in pursuance to their
disclosure statements. House search memo
Ex.PW35/48 was prepared by PW35 in this
regard. Since it was late at night so police
party alongwith the accused persons stayed at
Panipat (Haryana) on 10.3.02. At Panipat
48
(Haryana) IO SI Anil Somania again
interrogated the accused persons and then they
disclosed to the IO that the Tata Safari
bearing No. PB 07H 0085 was at Karnal
(Haryana). xxxi)
On 11.3.02 both the accused persons led
the police party to a factory namely AB
Coltex at Karnal (Haryana) and from inside
the said factory got recovered Tata Safari
bearing No. PB 07H 0085 in the presence
of PW 27 Sultan Singh chowkidar of the
factory. IO prepared the recovery memo Ex.
PW 27/1 of the Tata Safari but the accused
persons refused to sign the same, however the
same was signed by chowkidar of the factory
namely Sultan Singh. xxxii)
On the same day police party
alongwith the accused persons and the
49
recovered Tata Safari came back to Ghaziabad
and after medical examination accused persons
were produced in the Court of CJM Ghaziabad
and accused were remanded to judicial custody.
IO deposited the Tata Safari No. PB07H 0085
in the malkhana of PS Kavi Nagar.
xxxiii)
During investigation it was revealed
that Tata Safari No PB 07H 0085 was
registered in the name of Oswal Sugar Limited
Company GT Road Mukerian Distt.
Hoshiarpur (Punjab) in which Sh DP Yadav,
father of the accused Vikas Yadav was one of
the directors. It was also found during
investigation that part of the management of
AB Coltex Company at Karnal is same as in
Oswal Sugar Ltd Mukeria Hoshiarpur (Punjab).
xxxiv)
PW Ajay Katara who had allegedly
last seen the deceased in the company of both
50
the accused and their co accused Sukhdev
Pehalwan in the Tata Safari bearing No PB07H
0085 at Hapur Chungi on the intervening night
of 16/170202 when his scooter was broke
down, his statement was recorded by the IO
on 18/03/02. He gave the explanation for delay
in informing the police by saying that earlier
also he had approached the PS but SO was
not available.
xxxv)
Coaccused Sukhdev Pehalwan was
absconding since the date of incident and was
not traceable so on 13.03.02. IO moved an
application before the Court for initiating
proceedings U/s. 82/83 Cr PC against him. On
30.3.02 accused Sukhdev Pehalwan was declared
PO and prize of Rs. 2500/ was kept for his
arrest. Accused Sukhdev Pehalwan, who was
declared as PO during trial was finally arrested
51
on 23.02.2005 from Deweria (UP) and now is
facing separate trial in this court itself.
xxxvi)
The body of Nitish Katara was
cremated on 12.03.2002.
xxxvii)
On 2.4.2002 complainant identified
the recovered wrist watch as of her son Nitish
Katara ( now deceased) in a judicial TIP
before a Special Executive Magistrate at
Ghaziabad.
xxxviii)
During investigation it was found
that the deceased Nitish Katara was using
mobile phone No. 9811283641 and Ms Bharti
Yadav was using mobile phone No. 9810038469
which was registered in the name of her elder
sister Bhawna Yadav at the address of R
4/32Raj Nagar belonging to Sh DP Yadav.
Accused Vikas Yadav was using Cell phone
No 9811105905 which was registered in the
52
name of Kunal Yadav, younger brother of the
accused. The said mobile phone was registered
with address B 14 Gulmohar Park New Delhi
where Sh DP Yadav was also having office of
his company Oswal Sugar Ltd. Another cell
phone No. 9811462100 was being used by Mr DP
Yadav which was registered in the name of Mr
Vijay at the address of B 14 Gulmohar Park
New Delhi. Complainant Neelam Katara was
using cell phone No 9810206299 at that time
and her younger son Nitin Katara was using
cell No. 9811297136. He was also using another
cell phone No. 9822288216 of Pune, where he
was studying/working at that time. Witness
Bharat Diwakar was using cell phone No.
9810154964 and Gaurav Gupta had used phone
of Yash Tomar bearing No. 9811220691 on the
intervening night of 16/170202. IO collected
53
the call records of the aforesaid phones for the
relevant period from the Airtel and Hutch
Company. IO also collected cell ID charts of
both the companies of Delhi and NCR areas.
xxxix)
It was found during investigation
that landline No 4713790, 4751083 and 4714101
were installed at the residence of Sh DP Yadav
at Ghaziabad. Sh. Bharat Singh maternal uncle
of the accused Vikas Yadav was having landline
No. 4721001 at his residence at Ghaziabad.
Complainant was having landline Nos. 3747555
and 3366629 installed at house at 7 Chemsford
Road, New Delhi. Deceased Nitish Katara had
received several calls on his cell phone from
the landline Nos. of Sh. DP Yadav and Sh.
Bharat Singh before the date of incident. There
were several calls made between Ms Bharti
Yadav, Nitish Katara, Bharat Diwakar, Gaurav
54
Gupta, complainant Neelam Katara, Nitin Katara
etc before and after the incident. xl)
After the incident Ms Bharti Yadav sent
emails to Nitin Katara about the incident and
conduct of the accused persons.
xli)
During the course of investigation it
revealed that Ms Bharti Yadav had opened an
account No. 09065103027025 in BNP Paribas
Bank, Connaught Place New Delhi which was in
a building adjacent to the office of Nitish
Katara. Ms Bharti Yadav while opening the
account had given the address of Nitish Katara
in account opening form in the bank. The
initial amount of Rs 10,000/ for opening the
account was also paid through cheque No.
239166 of HDFC Bank from the account of
Nitish Katara bearing No. 003111144111. After
the death of Nitish Katara Ms Bharti Yadav
55
changed her address in BNP Paribas bank from
7 Chemsford Road New Delhi to B14 Gulmohar
Park, New Delhi where company namely Oswal
Sugar Ltd. of his father is based. The said
company also issued a certificate in favour of
Ms Bharti Yadav at the time of change of
address to the effect that B 14 Gulmohar Park
New Delhi was her office cum residential
address. xlii)
During investigation it also revealed that
on 24.8.2000 Ms. Bharti Yadav, her sister
Bhawana Yadav, her fianceD
eepak Yadav,
Nitish Katara and Rocky Yadav visited Bombay
to celebrate the birthday of Bhawana Yadav via
a Jet Airways Flight No. 9W332. During the
course of investigation IO SI Anil Somania
recorded the statements of the witnesses and
collected the relevant records. 56
xliii)
On 16.4.2002 recovered hammer Ex. P1
was sent to FSL Malviya Nagar Delhi for
examination through Ct Dayanand. On
17/5/2002 director FSL sent his report to
CJM Ghaziabad alongwith the hammer. As per
the report human blood was detected on the
hammer by the forensic expert.
xliv)
On 3.5.2002 IO SI Anil Somania filed
chargesheet against accused persons namely
Vikas Yadav and Vishal Yadav in CJM
Ghaziabad (UP). Accused Sukhdev Pehalwan
was shown as PO as he was absconding since
the date of the incident. xlv) On 06/05/2002 complainant Smt
Neelam Katara filed a transfer petition in the
Hon'ble Supreme Court on the ground that
there was no chance of fair and impartial trial
at Ghaziabad because of the influence of the
57
accused persons and Sh DP Yadav who was
a member of Parliament at that time. On
23/08/02 Supreme Court transferred the case
from the Court of Ghaziabad to Delhi. xlvi)
The chargesheet also finds mention that
accused Vikas Yadav was involved in three
criminal cases the details of which are given as
below:
1. Case No. 109/91 U/s 302 IPC PS Kavi Nagar.
2. Case No. 282/99 U/s 302/201 IPC PS
Mehrauli, Delhi. 3. Case No. 99/02, Sec. 25 Arms Act PS Dabra,
Distt. Gwalior, MP. xlviii) The accused Vishal Yadav was found
involved in the following case : 1. Case No. 100/02, Sec. 25 Arms Act PS Dabra,
Distt. Gwalior, MP.
3. Charge U/s. 364/302/201/34 IPC was
58
framed against both the accused, to which they
pleaded not guilty and claimed trial.
4.
In support of its case, the prosecution
has examined 43 witnesses in all which are as
follows:
PW 1 HC Nem Pal Singh PW 2 Chet Ram PW 3 Dr. Anil Singhal
PW4 Inspt Chander Pal Singh PW 5 Ct. Mudassar Khan
PW6 Archana Sharma PW7 Ram Lakhan Singh
PW8 Dr. T.D Dogra
PW9 Vikram Singh PW10 Dr.Sanjeev Lalwani
PW11Shivani Gaur
PW12 Kulwant Kaur
PW13 Bhagwan B.Mathur
PW14 Sandeep Goyal PW15 Vijay Kumar PW16 Ved Pal Singh
PW17 SI Ramesh Chand Makholia
59
PW18 Hemant Narayan
PW19 Jai Prakash Pandey PW20 Yashoman Tomar PW21 Deepak Gupta
PW22 RK Singh
PW23 Virender Singh PW24 Shadi Ram PW25 Bharat Diwakar
PW26 Gaurav Gupta PW27 Sultan Singh
PW28 Ct Inderjeet Singh
PW 29 Ct Brij Mohan Mishra
PW 30 Smt Neelam Katara PW 31 Umesh Sharma PW 32 Ct. Satender Pal Singh PW 33 Ajay Kumar / Ajay Katara
PW 34 SI JK Gangwar
PW35 SI Anil Somania
PW36 Revati Lau
PW37 AK Sharma
PW38 Bharti Yadav
PW39 Nitin Katara PW40 Shvendra Tiwari
PW41 Gulshan Arora.
60
PW42 Bhawana Yadav
PW 43 SP Singh 5.
Formal witnesses : i) PW 1 HC Nem Pal Singh is the duty
officer who recorded FIR No. 192/02
Ex.PW 1/2.
ii) PW 13 Sh.Bhagwan B.Mathur, Executive
Coordinator IMT Ghaziabad who produced the
student record of PWs Bharat Diwakar, Gaurav
Gupta, Shivani Gaur and Nitish Katara (now
deceased) as Ex.PW 13/1 to 5 respectively to
prove that they all were students of IMT
Ghaziabad during the year l9982000. iii) PW 14 Sh. Sandeep Goyal, the owner
of Diamond Palace Banquet Hall at Kavi
Nagar, where the marriage of PW11 Shivani
Gaur took place and from where the deceased
was allegedly abducted. 61
iv)
PW 16 Sh. Ved Pal Yadav the owner of
Aravali Tourist Taxi Services who had provided
taxi No. DL lY 4998 on 16/2/02 at 7.15 pm to
Nitish Katara on his requisition. v) PW 24 Sh. Shadi Ram, driver with
Aravali Tourist Taxi Services, who had taken
Nitish Katara and Bharat Diwakar to Diamond
Palace on 16.02.02 in the taxi. vi) CW2 Murari Lal Aggarwal, Executive
Clerk from the Court of ACJM Dabra had
produced the record pertaining to remand
papers and judicial proceedings in case FIR No.
99/02 under Arms Act against accused Vikas
Yadav and case FIR No. 100/02 under Arms
Act against accused Vishal Yadav as Ex.
CW 2/l to Ex.CW 2/4 respectively.
vii) PW 43 Sh. SP Singh Commercial
Officer BSNL Ghaziabad who proved the
62
relevant records of telephone Nos. 4714101,
4751083, 4713790 and 4721001. Witnesses relating to the
marriage of Shivani Gaur at Diamond
Palace on the intervening night of
16/2/02 17/2/02 and regarding the
presence of both the accused namely
Vikas Yadav and Vishal Yadav and
deceased Nitish Katara are :
6.
i) PW 11 Shivani Gaur.
ii) PW 19 Jai Prakash Pandey, Security
Guard at Diamond Palace. iii) PW 20 Yashoman Tomar.
iv) PW 25 Bharat Diwakar.
v) PW 26 Gaurav Gupta.
vi) PW 31 Umesh Sharma.
vii) PW 38 Bharti Singh Yadav. viii) PW 42 Bhawana Yadav. 63
Witnesses
relating
to
photography/ videography in the
marriage ceremony of Shivani Gaur are:
7.
i) PW 6 Archana Sharma.
ii) PW 15 Vijay Kumar
8.
Witnesses who saw Nitish Katara in
the company of accused persons outside
Diamond Palace : i) PW 28 Ct Inderjit Singh
ii) PW 32 Ct Satender Pal Singh 9. Witness who last saw Nitish Katara
alive in the company of deceased persons:
i)
PW 33 Ajay Kumar Recovery of deadbody & Inquest
Proceedings : 10.
i) PW 23 Virender Singh
ii) PW 4 Inspt Chander Pal Singh
64
iii) PW5 Ct. Mudassar Khan had
accompanied Inspt. CP Singh for the recovery
of the deadbody. 11.
Post Mortem :
i) PW 3 Dr Anil Singhal CMO District
Hospital Bulandshahar conducted postmortem on
the unidentified deadbody on 18/02/02.
Witnesses relating to Finger
Prints of the unidentified deadbody: 12.
i) PW 2 Chet Ram, Finger Print Expert
with Finger Print Bureau with Malviya Nagar. ii)
PW 35 SI Anil Somania
Witnesses to DNA Test on the
unidentified deadbody:
13.
i) PW 8 Dr. TD Dogra, AIIMS Hospital
65
New Delhi under whose supervision the blood
samples from Mrs Neelam Katara and Mr. N
M Katara, the parents of the deceased and
samples from the unidentified deadbody of the
deceased were collected for DNA test on
22.02.02 vide proceedings Ex.PW 8/F.
ii) PW 10 Dr Sanjeev Lalwani, Sr. Resident
AIIMS hospital, New Delhi, who collected the
above samples.
iii) PW 17 SI Ramesh Chand Makholia
who collected the samples for DNA from
AIIMS hospital on 25.2.02 and on the same
day he took the same to CFSL Calcutta and
deposited there. He also collected the remnants
of the samples and CFSL report from CFSL
Calcutta on 06.03.2002.
iv) PW 35 SI Anil Somania. v) PW 37 Dr AK Sharma, Asstt. Director
66
CFSL Calcutta, who proved DNA Report
dated 07.03.2002 Ex.C1. Witnesses to oral identification
of deadbody are :
14.
i) PW 30 Mrs, Neelam Katara
ii)
PW 34 SI JK Gangwar
iii)
PW 35 SI Anil Somania
iv) PW 39 Nitin Katara
Witnesses to the Arrest of the
accused persons: 15.
i) PW 29 Ct Brij Mohan Mishra of PS
Dabra, District Gwalior MP.
ii) PW 34 SI JK Gangwar.
iii) PW 35 SI Anil Somania.
iv) PW 36 Inspt Ashok Bhadoria of PS
Dabra (He is wrongly mentioned as PW 36 as
prior to him PW Revati Laul was examined as
67
PW 36 , hence this witness be read as PW
36A.)
16.
Disclosure statement of accused
persons : i) PW 35 SI Anil Somania
17. Pointing out of the place of
murder and place where deadbody was
burnt :
i) PW 34 SI JK Gangwar.
ii) PW 35 SI Anil Somania
18.
Recovery of hammer Ex.Pl at the
instance of accused Vikas Yadav : i) PW 34 SI JK Gangwar
68
19.
Recovery of wrist watch Ex/PW
7/Article A2 of the deceased at the
instance of accused Vishal Yadav :
i) PW 34 SI JK Gangwar.
20.
Identification proceedings of the
wrist watch ExPW7/ Article A2 :
i) PW 7 Sh Ram Lakhan Singh, Special
Executive Magistrate Ghaziabad
ii) PW 30 Neelam Katara, mother of the
deceased.
iii) PW35 SI Anil Somania, IO. 21.
Recovery of Tata Safari bearing
registration No. PB07H0085 allegedly
used in the commission of the crime :
i) PW 27 Sultan, Watchman with AB
Coltex, Karnal from where the said vehicle
69
was recovered.
ii) PW 34 SI JK Gangwar.
iii) PW 35 SI Anil Somania.
22.
Ownership of Tata Safari bearing
registration No. PB07H0085 :
i) PW 9 Vikram Singh, STA from Registrar
of Companies Punjab, Himachal and Chandigarh.
ii) PW 12 Ms Kulwant Kaur, DTO
Hoshiarpur. iii) CW 1 MK Katara director Oswal Sugar
Ltd Mukeria (Punjab).
23.
Witnesses relating to alleged
Admission /confession of accused Vikas
Yadav are:
i) PW 36 Revati Lau, NDTV Reporter /
Correspondent. 70
24.
Both the accused persons
absconded after the alleged crime : i) PW 34 SI JK Gangwar
ii) PW 35 SI Anil Somania. 25.
Motive of the accused persons /
relationship of PW Bharti Singh with the
deceased :
i) PW 18 Hemant Narainan, Sr. Executive
Jet Airways.
ii) PW 30
Mrs. Neelam Katara.
iii) PW 38 Bharti Singh.
iv) PW 39 Nitin Katara
v) PW 40 Shivendra Tiwari, HDFC Bank.
vi) PW 42 Bhawna Yadav. 71
26.
The witnesses relating to the
bank account of Ms. Bharti Yadav with
BNP Paribas Bank, Barakhamba Road
and to the bank account of the deceased
with HDFC Bank Surya Kiran Branch,
CP, New Delhi :
i)
PW40 Shvendra Tiwari, Asstt. Manager,
HDFC Bank, Surya Kiran Branch, Connaught
Place, New Delhi.
27.
Phone call record :
i) PW21 Deepak Gupta, Nodal Officer,
Hutchison Essar Telecom Ltd.
ii) PW 22 RK Singh, Bharti Cellur Ltd. iii) PW 41 Gulshan Arora, Nodel Officer
Hutch Essar, Okhla Industrial Area, Phase 2,
New Delhi. 28.
Statement of both the accused persons
72
was recorded U/s 313 Cr PC .
i) Accused Vikas Yadav in his statement
U/s 313 Cr. PC admitted that PW 38 Bharti
Yadav is his sister and was student of IMT
Ghaziabad from Sept 1998 to Dec 2000. He
also admitted that he knew PW 11 Shivani
Gaur, who studied with Bharti Yadav in Gargi
College. However, he denied it for want of
knowledge that both Bharti Yadav and Nitish
Katara ( deceased) wanted to marry each other.
He further denied that he, his father Sh DP
Yadav and coaccused Vishal Yadav were
against the marriage of the two on the ground
that deceased was from the different
community and his family was of a government
servant which they considered to be a poor
class. He stated that his whole family is
educated and even his marriage was fixed in
73
service class. He claimed that he never knew
deceased nor their plans to marry so there was
no reason for being averse to their marriage.
He denied it for want of knowledge that Ms
Bharti Yadav presented a wrist watch Esprit
Ex.PW7/Article A2 to Nitish in Dec. 2001.
ii)
In answer to question No. 18 that on
16.2.02 Nitish Katara made a call from his
mobile No. 9811283641 to Ms Bharti Yadav on
her mobile No. 9810038469 at 3.42 pm he
stated that he was not aware of. Similarly, in
answer to question No. 19 that Bharat Diwakar
received a call on his mobile No. 9810154964
from Bharti Yadav from her mobile No.
9810038469 at 5.20 pm on 16.2.02, he stated
that he was not aware of but he again
stated that as per his knowledge Bharti never
had a mobile. However, he did not deny the
74
existence of this mobile phone No.
9810038469.
iii)
Accused Vikas Yadav admitted that he
attended the marriage of Shivani Gaur on
16.2.02 at Diamond Palace alongwith his co
accused Vishal, his sisters Bharti and Bhawna
and his mother, however he denied that their
co accused Sukhdev Yadav had also
accompanied them to Diamond Palace. He
denied it for want of knowledge if Nitish
Katara had also reached the marriage venue
alongwith Bharat Diwakar in the taxi to attend
the marriage. He stated that he did not know
Nitish Katara and that when he went to attend
the marriage function that night he never met
any person wearing red kurta ,white pajama
and white shawl. He was shown the
photographs Ex. PW 6/2 and Ex.PW 6/3 in
75
which PW11 Shivani Gaur was appearing
alongwith other persons but he stated that
except Shivani Gaur he cannot identify others.
He was also shown the photographs Ex.PW
11/1 to PW11/4 in which both Bharti Yadav and
Nitish Katara are appearing but he stated that
he can only identify Bharti appearing in these
photographs and that he did not know the
person appearing in these photographs
alongwith Bharti. He was also shown the
photograph Ex.PW 11/5 of Nitish Katara but
he claimed that he did not know the person
appearing in the photograph and he had never
met him. He also denied it for want of
knowledge that deceased Nitish Katara on that
day was wearing a wrist watch Esprit Ex.PW7/
Article A2 and was also possessing a mobile
phone Samsung
having No. 981l283641 . He
76
also denied that during marriage function
Bharat Diwakar, Nitish Katara ( deceased) and
Guarav Gupta were taking dinner when his co
accused Vishal took Nitish out of the Diamond
Palace at about 11.15/ 11.30 pm while talking
to him and thereafter a quarrel had taken
place between him and Nitish Katara outside
Diamond Palace and thereafter he was taken
away in Tata Safari bearing No. PB 07H
0085 towards Hapur Chungi. iv) It is claimed that they had not gone to
attend the marriage at Diamond Palace in Tata
Safari nor Nitish Katara and Sukhdev Yadav
were with them nor they had gone towards
Hapur. v) He further stated that they had to go
to party of Amit Gandhi at Rajnagar and had
taken the route via Kavi Nagar to Raj Nagar.
77
He also denied that they were travelling in Tata
Safari bearing No. PB 07H 0085 alongwith the
deceased when their vehicle was stopped by
the police officials Ct Satender Pal Singh and
Ct Inderjeet Singh posted at Chetak 13, a patrol
car near Diamond Palace for checking at about
12.15 / 12.30 mid night or while traveling in
the same vehicle alongwith the persons, referred
above, an altercation took place between the
accused persons and PW 33 Ajay Kumar / Ajay
Katara near the crossing of Hapur Chungi when
his scooter broke down and he was asked by
accused Vikas Yadav in an uncivilised manner
to remove his scooter from the road and in the
process PW33 Ajay Kumar noted down the
number of the vehicle of the accused. He
denied the evidence that since he and his
father Sh DP Yadav and his co accused Vishal
78
Yadav were against the relationship between
Bharti Yadav and Nitish Katara, he was
abducted from Diamond Palace by him
alongwith his co accused Vishal Yadav and
Sukhdev Yadav and was thereafter murdered
and his body was burnt so as to avoid his
identification.
vi) It is admitted by accused Vikas Yadav
that he alongwith his co accused Vishal Yadav
were apprehended at the railway station at
Dabra but he denied that they were checked
and it is claimed that they were straightaway
apprehended after being identified and were
falsely arrested. vii) He also admitted that he was holding
a railway ticket from Jhansi to Delhi at the
time when apprehended at Dabra Railway
Station. He also admitted that he alongwith his
79
co accused Vishal Yadav were arrested under
Arms Act at Dabra. viii) It is claimed that while he was brought
to Ghaziabad alongwith his co accused Vishal
Yadav from Dabra, during transit he was
interrogated and forced to sign blank papers
at Agra Police line.
ix) He denied the recovery of hammer
Ex.P1, the weapon of offence at his instance. He
also denied to have pointed out the place of
murder or the place where the deadbody was
burnt. x) Recovery of Tata Safari Vehicle bearing
No. PB 07H 0085 from Karnal at their
instance has also been denied. xi) Regarding his interview in connection
with the present case to the media as contained
in cassette Ex. PW 36/l he stated that he has
80
seen the cassette played in the Court. He was
tortured badly over there before he was
interviewed. The inspector in the lockup had
stubbed the cigarette buds. He has not made
any incriminating statement to the media. The
cassette played in the court is tampered as it is
edited and he wants that that original cassette
containing the complete recording is obtained
from the concerned person and played in the
court. If the whole cassette is seen in original
the things would be amply clear. He was never
interviewed by Rewati Lau at all and it is a
matter of record that due to non availability of
the cassette at that time the witness could not
be cross examined. It does not form part of any
seizure memo or of the list of documents to
be relied upon by the prosecution. It is
claimed that he has been falsely implicated. It is
81
also alleged the police had introduced certain
interested witnesses who had deposed falsely.
He claimed that like him his co accused Vishal
Yadav also went to attend the marriage of
Shivani Gaur with him in his Mercedes and
greeted the couple but had not taken any food
as they were to attend another function of a
friend. They remained there for a short while
about 15 minutes. While they were leaving their
sister Bhawna met them at the main gate. She
asked them as to how they were leaving early.
He told her that he had to reach Karnal to
attend another function and also reach his
constituency via Mukeria. Thereafter they went
to attend party of Amit Gandhi at his house in
Rajnagar and after attending the party he left
for Karnal and Vishal left for his home. Since
the next day in the morning there was a havan
82
and in the afternoon there was a ring ceremony
at Karnal after which he left for Mukeria and
after finishing his work in his factory, he left
for Bisoli on 18/2/02 in the evening and
reached his constituency early in the morning
on 19/2/02. There, at Bisoli he came to know
that he was being framed in some false case .
He was in Bisoli for arranging his counting
agents as counting was to be held after about
four to five days. After that he left for
Allahabad and reached there on 20/2/02
morning and contacted Arvind Mishra, adv . The
next day in the morning he was joined by
Vishal. Then they met Sr. advocates Mr. AD Giri
and Mr. Jai Singh. They discussed the facts with
them and then they decided to surrender
before the concerned court at Ghaziabad . He
had also informed his advocate Rajender
83
Chaudhary at Ghaziabad about their will to
surrender. From Allahabad they started for
Delhi by changing trains i.e Allahabad to
Kanpur, Kanpur to Jhansi and Jhansi to Delhi.
On the way they got down at Dabra Station for
some refreshments but were apprehended and
confronted unnecessarily by the Dabra police on
being recognized, as their photographs were
flashed everywhere by print media and
electronic media. He claimed to have left
Allahabad on 22.2.02 for Kanpur. Thereafter
on 23.2.02 in early hours they reached Kanpur
and waited in the waiting room and on the
same day they took train to Jhansi and from
Jhansi they took train to Delhi on 23.2.02 to
reach Delhi on 24.2.02. He further claimed
that this case was highlighted and media hype
was such that it gives a reasonable inference
84
that whole case against him is politically
motivated and have been victimized by those at
the helm of affairs. It is claimed that he is a
victim of the political rivalry and was
falsely implicated. xii)
Regarding Tata Safari bearing No. PB
07H 0085, it is stated that this vehicle was
extensively used during the elections upto
14/02/02 and was sent for repairs at the
authorised dealer on 15/2/02 in the late
evening itself. Thus, there is no question of his
getting Tata Safari to the wedding venue on
16/2/02 and that infact he was using his
Mercedes. xiii) Similar is the statement of accused
Vishal Yadav, who too denied the entire
incriminating evidence appearing on record
against him, though he admitted that Ms Bharti
85
Yadav is his cousin sister and was student of
IMT Ghaziabad during the year 19992000.
He claimed that he was not aware of if
Shivani Gaur, Bharat Diwakar, Gaurav Gupta
and Nitish Katara ( deceased) were also
students of IMT Ghaziabad. He also claimed
that he was not aware if his cousin sister Bharti
Yadav was in love with deceased Nitish Katara
and they used to roam around together at
different places and got themselves
photographed vide Ex.PW 1/1 to 4 showing
their intimacy or used to exchange gifts or
write love letters and sent greeting cards to
each other on different occasion. He also
denied that Bharti Yadav used to call Nitish
Katara ( deceased) as Chimpu, Pudda'' out of
love and affection and Nitish Katara used to
call her as Ghugu and Chuha. He also denied
86
for want of knowledge that both Nitish Katara
and Bharti Yadav wanted to marry. He denied
and explained that he was not aware of their
intention of getting married so there was no
question of his being against them. It is stated
that it was no reason to object to their
marriage, so far he was concerned, for the
reason that Nitish Katara belonged to different
community and to a government servant family.
He denied for want of knowledge if wrist
watch Ex/PW 7/ Article A 2 was presented by
Bharti Yadav to Nitish Katara in Dec. 2001. xiv) He admitted that he alongwith accused
Vikas Yadav had attended the marriage of
Shivani on 16/02/02 at Diamond Palace, Kavi
Nagar, Ghaziabad, however he denied that
their co accused Sukhdev Pehalwan was also
with them. He also admitted that his cousin
87
sisters Bharti Yadav and Bhawna Yadav and
their mother had also attended the marriage
but he could not say if Nitish Katara
(deceased), Bharat Diwakar, Gaurav Gupta
besides others had also attended the marriage.
He claimed that he did not know Nitish Katara
(deceased). He was shown the photograph
Ex.PW 6/2 in which Nitish Katara is appearing
alongwith Bharat Diwakar, Bharti Yadav, Shivani
Gaur and he only identified Bharti Yadav and
Shivani Gaur in the said photograph. He
claimed that he was not aware of if deceased
Nitish Katara was wearing red coloured kurta,
white colour churidaar pajama with white shawl
on his shoulder, an Esprit wrist watch Ex.PW
7/Article A2 and was possessing a cell phone
making Samsung having mobile No. 9811283641,
attended the marriage of Shivani Gaur. He
88
denied that at about 11.15 / 11.30 pm while
Bharat Diwakar, Nitish Katara( deceased) and
Guarav Gupgta were having dinner in the
marriage function he went there and took
Nitish Katara out of Diamond Palace while
talking to him. He also denied that outside
Diamond Palace Banquet Hall his co accused
Vikas Yadav had a quarrel with deceased
Nitish Katara and thereafter he was taken
away by all the accused persons in Tata Safari
bearing No. PB 07H 0085 towards Hapur
Chungi. He also denied the prosecution
evidence that since his co accused Vikas Yadav
and his uncle DP Yadav were against the
relationship of Nitish Katara and Bharti Yadav,
as such Nitish Katara was abducted by him
alongwith his co accused persons on 16/ 1702
02 from Diamond Palace Kavi Nagar, Ghaziabad
89
and thereafter murdered him and burnt his
deadbody so that the same could not be
identified. He claimed that he even did not
know Nitish Katara. xv) Regarding the interview given by
accused Vikas Yadav to reporter PW 36 Revati
Lau vide cassette Ex PW 36/1 the accused
has admitted that as per the cassette an
interview was given by accused Vikas Yadav to
NDTV reporter and that he himself was also
appearing in the cassette. He did not deny the
interview.
xvi) It is claimed that he has been falsely
implicated. It is stated that on the date of
marriage of Shivani Gaur when he was going
to attend the same and when he was near his
car he saw his cousin brother going in black
Mercedes. They both had a talk and then
90
accused Vikas Yadav told him that he was
going to attend the marriage of Shivani Gaur so
they both went together, entered the premises,
where his cousin sister Bhawna met them,
they greeted the couple, remained there for
10/12 minutes and left the premises. While
they were leaving their cousin sister Bhawna
was near the main gate and asked them as to
why they were going so earlier, to which
accused Vikas told her that he had to go to
Karnal to attend another function so they both
left in the same car. It is stated that there was
nobody else with them. Further from Diamond
Palace they went to the house of their friend
Mr Amit Gandhi to attend his betrothal
ceremony and from there he went to his
residence whereas his cousin went to Karnal. It
is stated that he remained in Ghaziabad till
91
19.2.02 and when he came to know he was
being framed in this case he left for Allahabad
on 20.2.02 where he had to meet the accused
Vikas who had also left for Allahabad There
they contacted Sh AN Mishra, advocate and
narrated the circumstances to him and he
advised them to surrender before the local
Court at Ghaziabad. From Allahabad they
took next available train to Delhi to reach
Ghaziabad and on the way alighted at Dabra
for refreshments but were falsely implicated
under Arms Act. xvii) In answer to court question he
stated that they were travelling by Gomti from
Allahabad to Ghaziabad but he again stated
that he did not remember. xviii) In answer to further court question
he stated that complainant was not known to
92
him but she had problem against his family
by which he meant his maternal uncle Sh DP
Yadav. He also stated that police was also
enemical towards Sh DP Yadav. 29.In defence the accused persons had produced
26 witnesses in all namely DW 1 Sh. Ashok
Gandhi, DW 2 Madhu Mohan Nair, DW 3
Rajender Chaudhary, DW 4 Pawan Kumar
Diwan, DW 5 Advocate Sh Rajkumar Yadav,
DW6 Sh Neeraj Gautam, DW 7 Shakti Chand,
DW 8 Sh Gaurav Agarwal, DW 9 Bhairav
Prasad, DW 10 HC Chetlal, DW 11 Ombir,
DW 12 Arvind Mishra, DW 13 Sarvesh Kumar
Harit, DW 14 Manuj Diwan, DW 15 Vikam
Garg, DW 16 Mahender Sharma, DW 17
Sandeep Mishra, DW 18 Dr Deepak Kumar,
DW 19 Jai Singh, DW 20 BP Mittal, DW 21
Samar Singh, DW 22 Satpal Yadav, DW 23
93
Inspt Satyavir Singh, DW 24Sh Sunil Kumar
Sharma, DW 25 Jamshed Khan and DW 26
Dilip Kumar Singh.
(i) The plea taken by both the accused
persons in their statement U/s 313 Cr.PC is to
the effect that after attending the marriage of
Shivani Gaur they went to attend the betrothal
ceremony of Amit Gandhi, their friend and
thereafter accused Vikas Yadav left for Karnal
to attend another function. To prove this fact
they have examined DW 1 Sh Ashok Gandhi,
the father of Amit Gandhi who deposed to the
effect that he was resident of R 2/233 Rajnagar
Ghaziabad, UP and his son Amit Gandhi got
married in Feb 2002. The ring ceremony of
Amit Gandhi was performed on 16.2.02 at his
residence which was followed by a cocktail
cum dinner party. He deposed about presence
94
of both the accused at his house from 11 /
11:30pm to 12 /12:15/12:30 midnight. He
produced three photographs Ex. DW1/D1 D3
showing accused Vikas Yadav and Vishal Yadav
dancing alongwith the relatives of the witness
in photographs Ex DW 1/D1 2 whereas in
photograph Ex. DW 1/D 3 accused Vikas
Yadav is seen in the company of the father of
his daughter in law. He further stated that
when both the accused had left at that time
he was present at the gate and they had
touched his feet and he offered them packet of
sweets. His servant had kept a packet of sweet
in the vehicle of accused Vikas Yadav which
was an exclusive saloon car. He stated that it
must be Mercedes.
ii) DW 2 Madhumohan Nair , an
employee of Nawab Motors E 11 Sec. 11
95
Noida, was examined by the defence to prove
that Tata Safari bearing registration No. PB
07H 0085 was brought to their workshop on
16.2.02 for repairs at 10:49am and was
delivered back on 10.03.2002. The detailed
statement of this witness shall be discussed at
the appropriate stage.
iii) DW 3 Rajender Chaudhary adv, was
earlier the counsel for accused Vikas Yadav in
this case itself when the matter was pending
before Ghaziabad court. He deposed that on
27.2.02 an application Ex DW 3/A was moved
by him giving names of four advocates
including himself to be present alongwith the
accused persons during police custody remand.
He testified that he had accompanied both the
accused during police custody remand of 3
days w.e.f 28.2.02 to 01.3.02. He stated that
96
accused persons were collected by the police
from jail on 28.2.02. He went to the jail in his
own vehicle and showed the order of the Court
to the police. The IO told him that he should
join them in his own private vehicle and
would not permit him to sit alongwith them in
their vehicle. As such he followed the police in
his vehicle No. DL 5CB 4595 to Khurja and
he testified that in his presence no recovery
was effected at the instance of either of the
accused nor any proceedings were conducted.
He further testified that on 01.3.02 when
accused persons produced in the Court of CJM
Ghaziabad he informed the Court orally that
he was appointed in this case to accompany the
accused persons and no recovery was made in
his presence and that after he was informed by
the Court that as per the police record
97
recovery of hammer and watch was effected
by the instance of the accused persons. He
moved application Ex.DW 3/D alongwith an
affidavit Ex DW 3/E before the Court that no
recovery was effected from the spot at Khurja
at the instance of the accused persons in his
presence. iv) DW 4 Pawan Kumar Diwan is the
father of DW14 Manuj Diwan, who was getting
married at Karnal and a paryojan function
was organised at his residence on 16/2/02 and
on next morning on 17/2/02 there was sagan
ceremony followed by ring ceremony at
Highway Green in Karnal on Chandigarh Road.
As per this witness accused Vikas Yadav had
reached his house No. 204 L Model Town
Karnal Haryana at about 3am on the
intervening night of 16/170202 and
98
arrangements of his stay was made at Karna
lake. As per this witness, accused Vikas
Yadav attended the function on 17/2/02 for
about 2½ / 3 hours. The witness produced
CD Ex. DW 4/1 containing videography of the
function held at Highway Green showing the
presence of accused Vikas Yadav with the
couple after the ring ceremony. This witness
also produced two photographs mark DW
4/A and B respectively of the function showing
presence of accused Vikas Yadav , Manuj Diwan
and his fiancee. v) DW 5 Sh Rajkumar Yadav was the
counsel of accused Vishal Yadav in the present
case on 27.2.02 and had moved an application
Ex. DW 3/X seeking permission to accompany
the accused persons during police custody
remand.
99
vi) DW 6 Sh Neeraj Gautam is another
counsel who appeared in the court for the
accused persons after registration of the present
case and at the instance of accused persons he
had moved an application Ex. DW 6/1 on
21.2.02 in the Court of the CJM Ghaziabad
claiming that the police was harassing them
and as per their knowledge they were not
involved in any criminal case. vii) DW 7 Shakti Chand is an employee
of Nawab Motors. He produced the record
pertaining to the vehicle No. PB 07H 0085 i e
the job card bearing No. 221248 Ex. DW 7/A
dtd 16.02.02. He also produced 13 various
requisition slips for the various parts to be used
in the vehicle for repairs which are Ex DW
7/B to M respectively. He also produced the
spare part chart Ex.DW 7/P prepared on the
100
reverse of the carbon copy of the job card
Ex.DW 7/N. He also produced the computerised
vehicle history attested by Notary Public which
is Ex. DW 7/Q. The carbon copy of the gate
pass is Ex. DW 7/R and two bank statements of
the company i e Nawab Motors for the period
27/ 28901 & 20/21202 Ex.PW 7/S and T
respectively showing two payments made by
cheque for a sum of Rs. 20,000/ and Rs
25,000/ respectively. This witness also
produced the job cards prepared in Nawab
Motors in respect of other vehicles received
before or after receipt of Tata Safari No. PB
07H 0085 in the workshop. viii) DW 8 Gaurav Agarwal, the record
keeper in accounts with Indian Sucrose Ltd
produced the record dtd 19.2.02 pertaining to
payment of Rs. 25,000/ through cheque by M/s.
101
Oswal Sugar Ltd to Nawab Motors which was
encashed on 21.2.02 . He produced the certified
copy Ex.DW 8/A of the bank statement of
account No. 35019 in the name of M/s. Oswal
Sugar Ltd with Oriental Bank of Commerce
Hauz Khas having its office at B 14
Gulmohar Park New Delhi. ix)
DW 9 Bhairav Prasad, an independent
witness appeared in defence of accused Vikas
Yadav to prove his presence in Bisoli
constituency on 19.2.02.
x) DW10 HC Chet Lal proved DD register
containing DD No 12 A dtd. 17/2/02 Ex. DW
10/A registered with PS Pahar Ganj on the
complaint of Nishit Katara , father of the
deceased Nitish Katara.
xi) DW11 Omvir produced the maintenance
and fuel register maintained in Oswal Sugar
102
Mill regarding 13 vehicles owned by the
company including vehicle No. PB 07H 0085.
He also produced a letter Ex DW 11/A dtd.
12.7.07 written by Gayender Kumar, Chief
Accountant of the company Indian Sucrose
Ltd written to the manager OBS Hauz Khas
New Delhi to issue a certificate and certified
copy of the bank statement pertaining to
account No. 35019 Oswal Sugar Limited. He
also produced another letter written by
Gayender Kumar to Nawab Motors which is
Ex. DW 11/B. He is also examined to prove that in
the evening of 17/2/02 accused Vikas Yadav
visited the factory at Mukeria at 7:10pm and
left at 7:40pm. xii)
DW12 Arvind Mishra another practising
advocate at the Hon'ble High Court of
103
Allahabad has been examined in defence to
prove the presence of both the accused persons
in Allahabad on 20.02.02 and 21.02.02.
xiii) DW13 Survesh Kumar Harit Asstt.
Engineer was produced in defence to prove the
siteplan of Hapur Chungi the place where
Nitish Katara was last seen by PW33 Ajay
Katara in the company of accused persons.
xiv) DW14 Manuj Diwan is the son of DW4,
whose ring ceremony, accused Vikas Yadav as
per his statement U/s 313 Cr.PC, had gone to
attend at Karnal on 17/2/02.
xv)
DW15 Vikram Garg is the photographer
examined with a view to prove that the
photograph Ex.PW6/2 of Nitish Katara alongwith
others taken at the time of marriage of Shivani
Gaur, was tampered with and contained
different details then from the photographs
104
Ex.PW 6/D3 and its enlarged copy Ex.PW 6/D4.
xvi) DW 16 Mahender Sharma, another
photographer had appeared this court on 6.5.03
alongwith his computer and had enlarged the
photograph Ex. PW 6/D3 to Ex.PW 6/D4.
xvii) DW 17 Sandeep Mishra has again
tried to prove the presence of accused Vikas
Yadav in the election office at Bisoli on
19.02.02. xviii) DW 18 Dr Deepak Kumar Agarwal has
been examined qua PW 33 Ajay Kumar /
Ajay Katara who was admitted in the Panna
Lal Hospital on 1.7.07 at 10.10 pm by Mr Arun
Garg Mr P Singh and Mr Lakhbir singh with
the history of vomiting and pain in the
abdomen. This doctor had examined him and
Ajay Katara told him that around 8.30 pm on
that day he alongwith his friend had taken
105
some chat, cold drink etc and when he reached
home he started vomiting and felt pain in the
abdomen and also felt that he was administered
some poisonous substance through meals. He
proved the case sheet of the patient as Ex.DW
18/Al to A 13 respectively and the investigation
reports Ex. DW 18/B 1 to B 6. He further
stated that in such kind of patients the
procedure followed is gastric lavage/gastric
suction. However, the patient Ajay Katara
refused to undergo the said procedure.
Regarding this he made endorsement on
Ex.DW 18/A2 encircled red at point X. The
documents Ex.DW 18/ A9, A 10 and A 11 are
bearing his signature at point Y. He proved the
MLC of patient prepared and signed by Dr
Rajesh in his presence as Ex. DW 18/C. This
witness further testified that after going through
106
the reports of Ajay Katara he could say that it
was not a case of poisoning. xix) DW 19 Jai Singh is another lawyer practising
at Hon'ble High Court of Allahabad, who claims
that the accused persons had met him at
Allahabad on 21.2.02 while they were going to
the house of Sr advocate Sh AD Giri.
xx) DW 20 BP Mittal is another practising
lawyer at District Courts at Bulandshahar who
had filed a divorce petition of Mamta Katara
against her husband PW33 Ajay Katara. The
witness produced the certified copy of the WS,
certified copy of the order passed by the Court
on the basis of compromise between the parties
and the certified copy of the decree dtd 27.7.04,
which are Ex.DW 20/A to D respectively.
Through the testimony of this witness the
defence has tried to prove on record that PW
107
33 Ajay Katara was resident of village Bamroli
District Agra which fact was denied by Ajay
Katara in his WS Ex. DW 22/B and he gave the
address of matrimonial house as Sec. 11 E , 115
Pratap Vihar Ghaziabad. xxi) DW 21 Samar Singh is an another
advocate practising at the Hon'ble High Court
of Allahabad who claims that he has been
handling and looking after the cases of Sh DP
Yadav, father of accused Vikas Yadav since the
year 1986. This witness has been examined to
the effect that SI Anil Somania the IO of the
present case when was posted in District
Sambhal from where Sh. DP Yadav was MP,
had a tussle with Sh DP Yadav since he was
pursuing the matter of local inhabitants of
Sambhal Constituency and since Mr DP Yadav
had declined to supply the wine to the police
108
officers free of cost, it resulted in his
implication in a false case. xxii) DW 22 is advocate Satpal Yadav.
The prosecution has claimed that this witness
was present at the time of recovery of hammer
Ex. P 1 and wrist watch EX PW 7/Article A2
at the instance of both the accused persons
since the recovery memo Ex.PW34/1. He was
examined by the defence to the effect that he
was not present at the time of alleged recovery.
xxiii) DW 23 Inspt Satyavir Singh, Company
Commander, 41 Battalion ''H'' Company
Ghaziabad UP was examined in defence to
prove that Ajay Katara is a false witness to the
effect that he had gone to the residential
complex 47th Battalion, Ghaziabad on 16.2.02 to
meet Subhash Chand, a native from his village
and an employee of UP police and at about
109
12.10 am he left the place of Subhash Chand
and was coming back to Delhi when his scooter
went out of order on the crossing of Hapur
Chungi and from his left side from behind a
vehicle Tata Safari came and his scooter had
just stopped, the person driving Tata Safari was
accused Vikas Yadav who in a very uncivilised
manner told him to remove the scooter and
then the witness went to the Tata Safari and
saw the deceased in the company of both the
accused persons as well as their co accused
Sukhdev Pehalwan.
This witness testified that he was
residing at the Residential Complex 47th
Battalion Ghaziabad alongwith his family for
the past 14 years He stated that he remained
posted with 47th Battalion for about 7 years
during the period l992 to l999. Thereafter we.f
110
2000 he is posted in Ghaziabad with 41st
Battalion. He stated that 47th Battalion is
equipped with sophisticated weapons to fight
against terrorism and fundamentalists. In the
residential complex itself there is armoury and
magazine where the arms and ammunitions are
stored and for its security the residential
complex is surrounded by wall and there is an
entry point and an exit point and line police is
posted on both these points for 24 hrs. At the
quarter guard there is armed force posted. A
register is also maintained at the entry point
and who so ever from outside enters the
complex and does not belong to the PAC
whether it is 47th or 41 Battalion, an entry
is made in the register. xxiii) DW24 Sh Sunil Kumar Sharma,
Ahlmad to the Court of CJM Ghaziabad UP
111
produced the summoned record pertaining to
case No. 105/07 Crime No. 77/07 of PS
Kavi Nagar titled as ''Smt Tanu Chaudhary
Vs. Ajay Katara and Ors.'' U/s 498A/323/506
IPC and 3 & 4 Dowry Prohibition Act.
xxiv) DW 25 Jamshed Khan Deputy
Executive Producer Star News who had
conducted a sting operation on SI Anil Somania
& Ors. in Feb 2005. It is stated that the sting
operation was conducted regarding encounter
done by SI Anil Somania to expose as to how
false encounters were done by the police.
xxv) DW 26 Sh Dalip Kumar Singh,
Group Editor of Jain Television was examined
in defence to prove on record some interview
given by Tanu Chaudhary wife of Ajay Katara,
which was telecasted by Jain TV on 20.2.05 ,
however the witness could not produce any
112
record to this effect and testified that record is
maintained only for 90 days. The witness even
refused to comment upon the CD produced by
the defence counsel, containing any such
interview. 30. I have heard arguments at length
addressed by Sh BS Joon, Spl. For the State
assisted by Sh. Kaushik Dey, counsel for the
complainant, Sh. KN Balgopal, Sr. Counsel
assisted by Sh GK Bharti, counsel for accused
Vikas Yadav and Sh SK Sharma, counsel for
accused Vishal Yadav. I have also gone
through the relevant material on record with
the help of above named and have also gone
through the written submissions filed on record
by both the parties. 31. The present case is based on
circumstantial evidence for want of eye
113
witness. The prosecution claims to have proved
on record their case through the following
circumstances:
i)
Presence of both the accused persons
and the deceased in the marriage of Shivani
Gaur on the night of 16/2/2002 and during that
night at about 11:15 / 11:30pm accused Vishal
Yadav took deceased out of Diamond Palace
while talking to him. ii)
There was a tutu mainmain (exchange
of hot words) between the accused Vikas Yadav
and the Nitish Katara outside Diamond Palace
and in this regard he gave interview to NDTV
reporter on 25/2/02 after his arrest in the
present case.
iii)
Deceased was seen in the company of
both the accused persons and their co accused
114
Sukhdev Yadav ( facing trial separately) in Tata
Safari No. PB 07H 0085, firstly by Ct. Inderjeet
PW 28 and Ct. Satender PW 32 who were
posted with Chetak 13 and were checking the
vehicles during that night near Diamond Palace
and just after 5 minutes they were seen by PW33
Ajay Katara at about 12:30 /12: 35 am near
crossing of Hapur Chungi.
iv)
After that Nitish Katara was not seen
alive by anyone. Last call on his mobile phone
No.9811283641 was received at 1:11 am from
mobile No. 9810154964 of Bharat Diwakar . After
that no incoming or outgoing call was made from
the mobile of Nitish Katara nor any SMS was
sent or received. v)
Accused persons were absconding wef
after the incident till they were arrested within
the jurisdiction of PS Dabra on 23.2.02 at 4/
115
4:15am on 23/2/02 under Arms Act. They were
not available at their known addresses despite
search conducted by the police party during that
period. vi)
It was a stage managed arrest on
23/2/02 because in his explanation U/s. 313 Cr.PC
accused Vikas Yadav has specifically stated that in
the early hours of 23/2/02 he was at Kanpur. So
either his arrest was fake or his presence at
Kanpur in early hours as explained by him in his
statement U/s 313 Cr PC was false. At the time
of their arrest as per the FIRs Ex.PW36/4 and
Ex.PW 36/5 they had disclosed that they were
involved in the kidnapping of Nitish Katara at
Ghaziabad.
vii)
In the application dtd. 24/2/02 part of
Ex.CW 2/B moved by the both the accused
persons before Dabra Court, wherein it is
116
mentioned that a case U/s 302 IPC was
registered against them with PS Kavi Nagar
Ghaziabad whereas till that time Section 302 IPC
was not added in the FIR Ex.PW 1 /2 registered
with PS Kavi Nagar U/s 364 IPC. Section
302 IPC was added to the FIR on 25/2/02 .
An application Ex.PW 35/13A was moved by IO
on 24.2.2002 before the Dabra Court for obtaining
transit remand of the accused persons and even
in this application IO had not mentioned Sec.
302 IPC but only Sec. 364 IPC. viii)
Accused stated in his statement U/s 313
Cr.PC that he was tortured by the police with
cigarettes buds before their interview to NDTV,
however no such injury marks are seen in MLC
dtd. 28.2.02. Even the said statement of accused
Vikas Yadav does not find corroboration from
the statement of accused Vishal Yadav U/s 313
117
Cr. PC, wherein he has nowhere alleged that
accused Vikas Yadav was tortured by the police
with the cigarettes buds before the interview on
NDTV was recorded. ix)
Recovery of hammer Ex. P l at the
instance of accused Vikas Yadav and recovery
of wrist watch EX. PW 7/ Article A2 at the
instance of accused Vishal Yadav in presence
of adv. SP Yadav, in furtherance of their
disclosure statement Ex. PW 35/16 and Ex PW
35/17 respectively.
x)
The wrist watch was correctly identified
by the complainant in judicial TIP that it was the
same watch which was gifted to Nitish Katara by
Bharti Yadav which was worn by Nitish Katara
at the marriage of Shivani Gaur .
xi)
Recovery of Tata Safari bearing
registration No. PB 07H 0085 at the instance of
118
both the accused from burnt thread factory AB
Coltex at Karnal on 11/3/02 in the presence of
PW Sultan Singh, security guard of the factory
which was owned by Sh DP Yadav. xii
After completion of the MBA Course
from IMT Nitish Katara took up a job with
Reliance General Insurance and his office was at
Hans Plaza, Connaught Place. Bharti Yadav
opened her bank account in BNP Paribas Bank,
Barakhamba Road, Connaught Place, New Delhi
near the office of Nitish Katara and Bharti
Yadav gave her address in the bank as 7,
Chemsford Road, New Delhi which was the
residential address of Nitish Katara, though she
was having two addresses in Delhi, i e B14,
Gulmohar Park and 15, Balwant Rai Mehta Lane,
New Delhi, the official accommodation her father
since he was MP during those days. The account
119
was opened with an initial amount of Rs. 10,000/
through a cheque . Strangely enough this cheque
was issued from the account of deceased Nitish of
HDFC Bank. As soon as the incident took place
on 1/3/02 the application was moved by Bharti to
BNP Paribas Bank for change of address from 7
Chemsford to B14 Gulmohar Park.
xiii.
On 24/8/00, Bharti Yadav, Bhawna
Yadav, her fiancee Deepak Yadav and one
Rocky alongwith deceased Nitish Katara visited
Bombay to celebrate the birthday of Bhawna
Yadav and no other close friend accompanied
them .
xiv
Call records of Bharti Yadav , Nitish
Katara, Bharat Diwakar and Gaurav Gupta who
was using phone of Yashoman tomar, Neelam
Katara, Nitin Katara , Vikas Yadav and Sh. DP
Yadav.
120
xv
Photographs of the marriage of Shivani
Gaur, Intimate photographs of Nitish Katara and
Bharti Yadav, greeting cards, love letters and
gifts etc sent by Bharti Yadav to deceased. All the
documents are duly exhibited.
xvi
Co accused Sukhdev Pehalwan
absconded and was arrested on 23/2/05 from
Dewariya. xvii
Human blood was detected on
hammer Ex P l as per the CFSL report Ex.
PW 35/57.
xviii
Accused Vikas Yadav was convicted in
Jessica Lal murder case. He was also involved
in murder case in the year 1991 which was
withdrawn in the year 1994. xix
False plea of alibi taken by the
accused persons and false defence taken in
statement U/s 313 Cr PC, false defence evidence
121
led by the accused persons to mislead the Court. xx
Postmortem report and deadbody of
the identification. 33.
In my opinion these 20 circumstances
can be summed up as follows:
i
Motive ii
Abduction / Last seen
iii
Recovery of weapon of offence, the
belongings of the deceased and Tata Safari
bearing registration No PB 07H 0085.
iv
Medical evidence v
Identification of the deadbody and
vi False defence taken by the
accused persons. Alongwith arguments on aforesaid
circumstances, arguments on the principles of law
to be applied in such cases were also addressed.
122
The learned counsel for the accused persons Sh.
KN Balgopal and Sh SK Sharma placed reliance
upon 1953 Crl.LJ 129 Hanumant Vs State of MP,
2007 (2) JCC page 1249 Hatti Singh Vs State of
Haryana, 2006 (10) Supreme Court Cases 172
Ramreddy Rajesh Khanna Reddy Vs State of
A.P, 2003(1) CC Cases (SC) 145 Bharat Vs
State of M.P and 1997 Crl.LJ 3686 (Delhi High
Court) Arun Kumar Vs. N.G. Mandi.
The learned counsel for the accused
persons Sh. KN Balgopal and Sh SK Sharma
specifically referred to the following paragraph of
the various judgments cited by them.
In 1953 Crl. LJ 129 Hanumant Vs
State of MP, the defence counsels referred to
paragraph 10 which read as under:
''
......... In dealing with
circumstantial evidence rules specifically
123
applicable to such evidence must be kept
in mind. In such cases there is always
the danger that conjecture or suspicion
may take the place of legal proof and
therefore, it is right to recall the
warning addressedby Baron Alderson to
the jury in Reg. VS hadge (1938) 2
Leewin 227 where he said: “ ......... The mind was apt to
take a pleasure in adopting
circumstances to one another and even
in straining them a little. If need be,to
face them to form parts of one
connected whole and the more
ingenious the mind of the individual
the more likely was it. Considering such
matters, to overreach and mislead itself,
to supply some little link that is wanting,
to take for granted some fact consistent
with it previous theories and necessary
124
to render them complete..............”
It is well to remember that in
case where the evidence is of a
circumstantial
nature,
the
circumstances from which the
conclusion of guilt is to be drawn should
in the first instance be fully established
and all the facts so established, should
be consistent only with the hypothesis of
the guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should b
such as to exclude every hypothesis
but the one proposed to be proved. In
other words, there must be a chain of
evidence so complete as not to leave any
reasonable ground for a conclusion
consistent with the innocence of the
accused and it must be such as to show
that within all human probability the act
125
must have been done by the
accused............” In 2007 (2) JCC page 1249 Hatti Singh
Vs State of Haryana, the defence counsels
referred to paragraph 29 which read as under:
“ … ..There cannot be any
doubt that conviction can be based n
circumstantial evidence, but therefore
the prosecution must establish that the
chain of circumstances only
consistently point to the guilt of the
accused and is inconsistent with his
innocence. Circumstances, as is well
known, from which an inference of guilt
is sought to be drawn are required to
be cogently and firmly established. They
have to be taken into consideration
126
cumulatively. They must be able to
conclude that within all human
probability the accused committed the
crime… ..”
In 2006 (10) Supreme Court Cases
172 Ramreddy Rajesh Khanna Reddy Vs
State of A.P the defence counsels referred to
paragraph 26 which read as under:
''It is now well settled hat
with a view to base a conviction on
circumstantial evidence, the prosecution
must establish all the pieces of
incriminating circumstances by reliable
and clinching evidence and the
circumstances so proved must form such
a chain of events as would permit no
127
conclusion other than one of guilt of the
accused. The circumstances cannot be
on any other hypothesis. It is also well
settled that suspicion, however grave it
may be, cannot be a substitute for a
proof and the courts shall take utmost
precaution in finding an accused guilty
only on the basis of the circumstantial
evidence. … …'' In 2003(1) CC Cases (SC) 145
Bharat Vs State of M.P it is held :
''T
he conviction based mainly
on two circumstances I e of last seen
together and recovery of the ornaments
The alleged extrajudicial confession
unnatural and unbelievable The
evidence of recovery of ornament not
worth accepting No proper and legal
128
identification of the ornaments Doubt
on the date of the death of deceased
The chain of the circumstances not
complete Conviction set aside.”
In 1997 Crl. LJ 3686 ( Delhi High
Court) Arun Kumar Vs NG Mandi, the
defence counsels referred to paragraph 17 as
under:
''
The law regarding the proof of
guilt of the accused, in absence of any
direct evidence, through the
circumstantial evidence, being that there
must be a chain of evidence /
circumstances so complete as not to leave
any reasonable ground for the
conclusion consistent with the innocence
of the accused and must show that in
129
any of human possibility that act must
have been done by the accused and the
accused alone. In the instant case in
view of state of evidence as above, the
only circumstance which can be said to
have been proved by the prosecution
evidence is that the deceased Ram
Chander was taken by the accused Sita
Ram at about 12 noon on 14121986
to Samai Pur to meet Lachhman Mandal
and Narain Madnal and nothing further,
which, in our opinion, would not be
sufficient, in absence of the complete
chain of circumstances suggesting the
involvement of the accused with regard to
the inflicting of the injury on Ram
Chander Singh, coupled with the
circumstances of the discovery of weapon
by the appellant containing the blood of
the deceased. Under these circumstances,
130
the prosecution cannot be said to have
established the circumstances of such a
nature as to be capable of supporting the
exclusive hypothesis that accused is
guilty of the crime of which he is
charged. In our opinion, the finding of
guilt could not have been justifiably
recorded against the appellant and the
learned trial Judge has cited in finding
the appellant guilty of the offences
charged and imposing the consequent
sentence. .............” ''The submissions of counsel
for both the accused persons that in the
first instance the State has to
satisfactorily
establish
each
circumstances beyond shadow of
reasonable doubt and secondly if any
circumstance or some of the
131
circumstances out of the proved
circumstances is or are explainable by or
any other reasonable hypothesis than the
guilt of the accused then that
circumstance or circumstances cease to
remain incriminating and can not be
considered against the accused. Counsel
for the accused persons emphasized that
even individual circumstance should
not be explainable on any other
reasonable hypothesis. If it is so
explainable on any other reasonable
hypothesis then such material will have
to be eliminated from the chain of
circumstances and if it is material link in
connecting the chain of circumstantial
evidence, then chain will be broken. The
benefit of the same will be given to
accused. ''
On the other hand, the learned Spl.
132
PP Sh B S Joon for State placed reliance
upon authority reported in AIR 1984 SC 1622
Sharadbirdi Chand Sarda Vs. State of
Maharashtra''. In the aforesaid case Hon'ble Apex
Court has laid down five golden principles
which constitute the Panchsheel of the proof
of a case based on circumstantial evidence.
These five golden principles are as follows:
1.
The circumstances from
which the conclusion of guilt is to
be drawn should in the first
instance be fully established.
2.
The facts so
established should be consistent
only with the hypothesis guilt of the
accused , that is to say, they
should not be explainable on any
other hypothesis except that the
accused is guilty. 3.
The circumstance should
be of conclusive nature and
133
tendency. 4.
They should exclude every
possible hypothesis except the one
to be proved and
5. There must be chain of
evidence so complete as not to leave
any reasonable ground for the
conclusion consistent with the
innocence of the accused and must
show that in all human probability
the act must have been done by the
accused. All the above referred conditions must
be fulfilled before a case against an accused
based on circumstantial evidence can be said to
be fully established. If these conditions are
fulfilled only then a Court can use a false
explanation or a false defence as an additional
link to lend an assurance to the Court and not
otherwise.
The Spl. PP for State, Sh B S Joon
134
submitted that most important caution, however
is that the circumstances are to be seen in
totality and not separately or singularly.
Separately, a circumstance may be innocuous
but the circumstance have to be read as an
integral part. The court ought not to reject the
circumstances one by one and then hold that the
case is not made. Sh BS Joon, relied upon 2000
(1) JCC (SC) 20 CK Reveendran Vs. State of
Kerala, 2002(8) Supreme 220 Anthony D
Souza & Ors. Vs State of Karnataka and 1991
(1) JCC (SC) 283 Arvind @ Pappu Vs State (
Delhi Administration).
The Spl. PP for State Sh. BS Joon
specifically referred to the following paragraph
of the various judgments cited by him.
In 2000(1) JCC (SC) 20 CK
Reveendran Vs. State of Kerala, the Spl.
135
PP for State referred to paragraph 4 which read
as under:
'
'
The prosecution must
prove each of the circumstances, having
a definite tendency pointing towards the
guilt of the accused and though each of
the circumstances by itself may not be
conclusive but the cumulative effect of
proved circumstances must be so
complete that it would exclude every
other hypothesis and unequivocally point
to the guilt of the accused… … ……”
In 2002(8) Supreme 220 Anthony
D Souza & Ors. Vs State of Karnataka the
Spl. PP for State referred to paragraph which
read as under:
“In a case of circumstantial
136
evidence where an accused offers false
answers in his explanation under section
313 Cr.PC 1973 against the established
facts that can be counted providing a
missing link for completing the chain.”
In 1991(1) JCC (SC) 283
Arvind @ Pappu Vs State ( Delhi
Administration) the Spl. PP for
State referred to paragraph 12
which read as under:
The standard of proof required to
convict a person on circumstantial
evidence is now established by a series of
decisions of this Court. According to
that standard the circumstances relied
upon in support of the conviction must
be fully established and the chain of
137
evidence furnished by those
circumstances must be so complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused. The circumstances from
which the conclusion of the guilt is to be
drawn have not only to be fully
established but also that all the
circumstances so established should be
of a conclusive nature and consistent
only with the hypothesis of the guilt of
the accused and should not be capable
of being explained by any other
hypothesis, except the guilt of the
accused and when all the circumstances
cumulatively taken together should lead
to the only irresistible conclusion that
the accused alone is the perpetrator of
the crime. To quote a few decisions of
this Court in this regard reference may
138
be made to the case of Sharad
Birdhichand Sarda Vs State of
Maharashtra1984(4) SCC 116:
Balwinder Singh Vs State of Punjab
AIR 1987 SC 350 : Dhananjay
Chatterjee alias Dhana Vs State of West
Bengal 1994(2) SCC 220, Laxman
Naik Vs State of Orissa 1994(3) SCC
381 and Brijlala Pd. Sinha Vs State of
Bihar 1998 (5) SCC 699.”
The position which emerges from the
judgments of the Honble
Supreme Court
cited above is that in the matter of circumstantial
evidence constituting the chain of the case of
the prosecution, while dealing with individual
circumstance, the court is to consider if the
circumstance as a fact stands proved by
preponderance of evidence. While considering
139
the circumstance it is also to be considered
whether any particular circumstance also suggest
any other reasonable hypothesis than what is
claimed by the prosecution. If yes than what is
the effect of such reasonable hypothesis on the
total circumstances considered together
cumulatively. If the accused persons with respect to
particular circumstance claim that the existence
of circumstance is on account of another
reasons than what is claimed and emerges out of
the evidence of the prosecution then the court
is also to consider the evidence that may be
adduced by the accused, either in defence or
elicited in cross examination. Considering all
this aspect the court is to consider if the
circumstance stands proved/ unproved. If the
evidence adduced by the accused creates even
140
suspicion of such claim, then such circumstance
shall not be held as proved and will not be
considered in the chain of the case of the
prosecution. The cumulative effect of all the
circumstances as are held to be proved shall be
considered as against the accused qua the
explanation submitted by the accused so as to
find out if the case is proved beyond reasonable
doubt. Individual circumstances are not to be
rejected if they satisfy the test of proved by
preponderance of evidence . It is only the
cumulative effect of the circumstances which is
to be considered with the hypothesis which has
been put by the prosecution while considering the
concept of beyond reasonable doubt. 32.
Keeping in mind the aforesaid
principles the various circumstances which have
been claimed to have been proved by the
141
prosecution are to be considered as to whether
the prosecution infact is able to prove them on
record. It is also to be taken into consideration
if any of the proved circumstance directs any
other hypothesis ie other than the guilt of
accused persons. The total and cummulative
effect of all the circumstances is to be taken
into consideration to arrive at a finding that
these circumstances lead to no other hypothesis
except proving the guilt of accused persons. A.
i) MOTIVE The prosecution has alleged that
both the accused persons had strong motive to
kill the Nitish Katara since Ms Bharti Yadav,
the sister of accused Vikas Yadav and cousin
sister of accused Vishal Yadav had a love affair
with the Nitish Katara which relationship they
142
wanted to culminate in marriage which was not
to their liking and hence the deceased was
eliminated.
ii)
As per Section 8 of the Indian
Evidence Act :
''any fact is relevant which shows
or constitutes a motive for commission of
the alleged crime.'' As explained by the Hon'ble Supreme
Court in Ranga Nayaki 's case reported in
(2004) 12 SCC 521. ''Motive is the emotion
which impels a person to do a
particular act and such an impelling
power may not be proportionate to the
gravity of the crime. Many a murder
has been committed without any
143
known or prominent motive and it is
quite possible that the impelling
factor may remain undiscoverable.'' iv) Motive plays an important role in
order to tilt the scale against the accused. In
a case which is based on circumstantial
evidence motive assumes greater importance.
It is settled law that in order to bring home
the guilt of the accused it is not necessary for
the prosecution to prove the motive. Existence
of motive is only one of the circumstances to
be kept in mind while appreciating the evidence
adduced by the prosecution. If the evidence of
the witnesses appears to be truthful and
convincing, failure to prove the motive is not
fatal to the prosecution as held in the case
of Bhimapa Chandappa Hosamani Vs State
of Karnataka reported in (2006) 11 SCC 323.
144
v) It is also held by the Hon'ble Apex
Court in the case of Yuvraj Ambar Mohite Vs
State of Maharashtra reported in 2006 (10)
Scale Page 369 that when a case is based on
circumstantial evidence of last seen, absence of
motive is immaterial. It is held that the
immediate motive for killing the deceased by
the appellant might not have been proved.
What transpired in a closed room cannot be
known. vi) Now it is to be seen as to what
evidence has been produced by the prosecution
to prove that the accused persons had motive
to eliminate the deceased. The prosecution has
alleged that Ms Bharti Yadav had love affair
with the deceased and they both wanted to
marry but both the accused persons did not
approve of their relationship and finding an
145
appropriate opportunity on the occasion of
marriage of Shivani Gaur which was attended
by both the accused persons as well as by the
deceased, was abducted from the Diamond
Palace Banquet Hall by both the accused
persons and their coaccused Sukhdev and was
killed. It is claimed by the prosecution that
the deceased was taken out of Diamond Palace
by accused Vishal Yadav and thereafter was
seen in the company of both the accused
persons outside the Diamond Palace and again
near Hapur Chungi by the prosecution
witnesses around 12/12.30 mid night on the
intervening night of 16/17.2.02. On the next
morning ie 17.2.02 the deadbody of the
deceased was found in burnt condition from
a pit near fields of Zahir Vakil on Shikarpur
Road, a place within the jurisdiction of PS
146
Khurja Nagar. vii) On the other hand, the accused
persons have denied that they had any
knowledge of any such affair between Ms
Bharti Yadav , sister of accused Vikas Yadav
and cousin sister of accused Vishal Yadav and
the deceased or their plan to marry. They also
denied that deceased was known to them. They
both have pleaded alibi to the effect that at
the time the deceased was allegedly abducted
from Diamond Palace and was seen in the
company of both the accused persons and their
co accused Sukhdev Yadav near Hapur Chungi,
they were present at the house of DW 1 Ashok
Gandhi to attend the ring ceremony of his son
Amit Gandhi, who was their school friend. And
thereafter accused Vishal Yadav went to his
house from the place of DW 1 Ashok Gandhi,
147
whereas accused Vikas Yadav left for Karnal to
attend the function relating to marriage of DW
14 Sh. Manuj Diwan. viii) In this regard the prosecution has
relied upon the testimony of PW 30 Smt
Neelam Katara the mother of the deceased, PW
38 Bharti Yadav, PW 39 Nitiin Katara, the
brother of deceased, PW 42 Bhawna Yadav .
PW 21 Deepak Gupta, Nodal Officer, Hutchison
Essar Telecom Ltd. PW 22 RK Singh from
Bharti Cellular Ltd, PW 34 SI JK Gangwar,
PW 35 SI Anil Somania and PW40 Shvendra
Tiwari, Asstt. Manager, HDFC Bank, Surya Kiran
Branch, Connaught Place, New Delhi and to
some extent PW 25 Bharat Diwakar.
ix) The arguments of the defence counsel
are that the testimony of PW 30 Mrs.Neelam
Katara does not inspire credence, as it is full of
148
improvements and the witness has been
confronted with her previous statements U/s
161 Cr PC dtd. 17.2.02 Ex.PW 30/DA and dtd.
14.3.02 Ex.PW 30/DB to this effect. It is
further submitted that the prosecution has also
referred to so called telephone communication
between Bharti Yadav and the friends of
Nitish Katara and his mother, Mrs. Neelam
katara but it does not find corroboration from
the statement of Bharti Yadav nor were the
said statements made by the complainant in her
statement to the police U/s 161 Cr PC
recorded on two occasions spanning over a
period of 25 days. It is submitted that the
complainant and Bharti Singh did not possess
mobile phone in their name. (Neelam Katara
and Nitin Katara had stated that Neelam
Katara was possessing mobile No. 9810206099
149
and this fact is not disputed by the defence in
cross examination of both these witnesses)
Further that there is no transcript of any such
calls nor there is any corroboration of these
calls from the concerned persons nor has any
incriminating evidence emerged from the so
called telephonic conversation. x) It is further argued that PW 11
Shivani was a classmate of Bharti Singh and
even she was not aware of any such
relationship between Nitish Katara and Bharti
Singh. Bharti Singh herself has deposed that
the mother of Nitish was aware that she and
Nitish were close friends but she was opposed
to their relationship. She has further stated
that she did not want her relationship with
Nitish in the press even then and now and the
media had overblown it which is not to her
150
liking. xi) It is further submitted that in the
entire evidence produced by the prosecution
apart from the relatives of Nitish Katara no
witness has deposed to the effect that either
they were aware of any such relationship or
that any such relationship existed. Even in
her statement U/s 161 Cr PC Bharti Singh had
merely stated that her relationship was known
to her Mami wife of Sh Bharat Yadav and her
Bua and they had assured her that after the
elections of her brother Vikas Yadav they would
talk to her father about her marriage with
Nitish Katara. It is submitted that none of
them have been produced as prosecution
witness to this effect. xii) It is further argued that the entire
bunch of letters produced by the complainant
151
does not anywhere indicate that either the said
relationship was known to her brothers or they
had opposed the same. The claim of motive
raised by the prosecution is hollow. That even
when the prayer for examining her by video
conferencing was suggested but the prosecution
had opposed it on untenable grounds. Bharti
Singh was projected as the star witness in the
case until she came and deposed. When the
prosecution did not find any shelter in her
statement they immediately promoted Ajay
Katara as the star witness.
xiii) It is further submitted that the
prosecution had attempted to make out a case
that Bharti's brother did not like her dancing
while Shivani has clarified that on the said
date there was no dance.
xiv) Further that even the
152
complainant PW 30 Mrs. Neelam Katara had
mentioned in her cross examination that there
was no reason for her to make any complaint
against any of the family member of Bharti
Yadav. The apprehension that Bharti Singh
had from the time Nitish Katara was
missing, has been falsely put up by the
complainant and she has been confronted
adequately on these aspects with her earlier
statements and Bharti Singh had denied these
facts in her examination nor did she make
such statement in her so called statement to
the police. Whatever she wanted to say she
had conveyed to the concerned senior police
officer and the same was published in the
Newspaper and the prosecution has not
rebutted the same. xv) On the other hand the Spl. PP
153
for State has argued that in the present case
the prosecution has proved the motive of the
accused persons to the hilt. It is submitted that
prosecution has proved on record various
circumstances which conclusively prove the
closeness and proximity between Bharti Yadav
and Nitish Katara which is evident from her
greeting cards and letters she wrote to Nitish
Katara and these are all admitted by her during
her testimony. Further he has submitted that
her opening bank account with the address of
Nitish Katara, the visit of Nitish to Bombay
alongwith Bharti, her sister Bhawna and her
fianc e to celebrate the birthday of Bhawna in
August 2000, the visit of Bharti and Nitish to
Fatehpur Sikri, Jim Corbrett Park, their intimate
photographs all prove that they had intimate
relationship and their intention was to marry. It
154
is further submitted that through the letters
Ex.PW30/C1 and PW30/C4 the knowledge of her
family members about their affair has also been
proved. Besides, it is submitted that Neelam
Katara s testimony to the fact that Nitish
Katara told her that he was in love with her
and they both wanted to marry and that this
fact was known to her brothers ie accused
Vikas Yadav and Vishal Yadav but they were
averse to their marriage for the reason they
wanted Bharti to be married in their own caste
and for the reason Nitish Katara belonged to
family of government servants has remained
unrebutted. xvi) Now it is to be seen whether the
prosecution has been able to prove by cogent
evidence that Ms Bharti Yadav had love
affair with the deceased and that the accused
155
persons had the knowledge of their affair
and their intention to marry and that they did
not approve of their such relationship. xvii) PW 30 Mrs Neelam Katara has
testified on oath that her son Nitish Katara
( deceased) after doing graduation from
Venketeshwar college Delhi took admission in
IMT Ghaziabad in MBA course in the year
l998. He passed out from IMT in the year
2000 and thereafter he joined as Management
Trainee with Reliance General Insurance .
After completing his training he was confirmed
as Asstt. Manager about one month before his
death and his last office was in Hans Plaza
Connaught Place. She testified that Bharti
Singh, Gaurav Gupta, Bharat Diwakar and
Shivani were his close friends. Regarding
Shivani, she stated that though she was not
156
in the same course in which her son was but
she became friendly to him being friend of
Bharti Singh. She further testified that her son
Nitish and Bharti Singh got acquainted being
in the same course in IMT Ghaziabad and also
being in the same project during the course.
She testified that after college while most of
the friends of Nitish moved out but he
remained in Delhi because of his father' s
condition who was ailing. Regarding Bharti
Singh, it is stated that she too had not taken
up any job so this brought them closer and
from friendship they fell in love with each
other. Both of them used to organise get
together when other friends used to visit Delhi.
It is stated that size of flower bouquet being
sent by Bharti Singh was increasing and
specially on birthday of Nitish in April 2001, so
157
from her mother's sense she could gather that
their closeness and intimacy was increasing.
She further stated that she had questioned her
son about this but she could not get clear
answer till Dec 2001. xviii)
She further stated that Bharti Singh's
statement of account from BNP Paribas Bank
Connaught Place used to come at her address
ie 7 Chemsford Road but she did not open
that statement of account prior to the death of
her son. She opened that statement of account
after the death of her son and came to know
that Bharti Singh had given their address in
the bank for her account.
xix) She further testified that she was on a
business trip to Bombay in August 2000 and
was to return to Delhi by Rajdhani on
24.8.2000 but since her meeting got delayed
158
she had to change her plan and decided to
travel by Jet Airways. In order to inform her
son about change of her plan she called him
on phone and then came to know that he had
also come to Bombay at the birthday function
of Bhawna Yadav and told her that it was a
whole day programme and they had come for
an outing. Further, he informed her that he
would also be going back to Delhi by Jet
Airways the same flight by which she was to
go back. She met him at the airport and he
pointed out to her his friends Bharti, Bhawna,
Deepak and two more who were also at the
airport. xx) PW 30 Mrs.Neelam Katara produced
photographs Ex PW 11/1 to Ex. PW 11/4 in
which both Nitish ( deceased) and Bharti are
appearing together. It is observed as stated
159
by the witness that the photographs Ex. PW
11/ 2 and Ex.PW 11/4 were clicked at
Fatehpuri Sikri as per the background shown in
the photographs.
xxi) She further testified that Bharti used to
send cards and letters very frequently to her
son Nitish. There was a single valentine album
sent by Bharti to Nitish in which she had
tucked cards and written messages out of which
two cards are Ex.PW30/l and Ex.PW30/2. She
further testified that apart from these two cards
there were several other cards which she
lateron proved during her further testimony
dtd. 3.5.2003 as Ex.PW 30/C1 to Ex.PW
30/C 83. She testified that she had shown
all these documents to the IO who chose only
two greeting cards Ex. PW 30/1 and 2. She
further testified that Bharti used to call her
160
son by his nick name 'Chimpu' which was the
family nick name by which they used to call
him. Bharti also used to call him by other nick
name like 'Pudda etc'. Similarly Nitish also
used to call Bharti as Ghugu and Bharti also
used to write this nick name in her cards.
Further her son also used to call her as 'Chuha'.
Bharti also used to write herself as Ghugles. xxii) She further testified that in Dec.
2001 her son Nitish had disclosed to her about
his intention and love for Bharti and he told
her that he was not in a hurry to marry as he
wanted to settle down first but Bharti's father
was looking a match for her and therefore she
may have to disclose to her father about her
love. It is further stated that they both wanted
to marry . xxiii) She further testified that Nitish
161
told her that Bharti was planning to tell her
father about their intention to marry and that
her brothers i e both the accused present in
Court knew about her intention but they
were averse to her marriage with him, however,
she was confident that she would be able to
convince her father. Her son further told her
that Bharti was waiting for an opportunate time
and for her brother to go out of town after the
election and that as her brother's marriage
was fixed for 6th March, she was hopeful that
after marriage when he goes out she would be
able to convince her father. The witness
further testified that when she asked her son as
to what was the objection being raised by them,
she was told that there were two objections,
firstly they will marry the girl in their own
community and secondly the family of Nitish
162
was of government servants and they consider
the service class to be a poor class. She further
stated that she too had her own objections and
after considering pros and cons she told Nitish
that it would not be a suitable marriage but he
was adamant. It is stated that she had told
Nitish about the possible interference and that
brother of Bharti was already facing criminal
cases but her son was looking everything
through tinted glass and was adamant to
marry her. xxiv) Above is the statement of PW 30
Smt Neelam Katara with regard to the
relationship between Nitish Katara and
Bharti Yadav. xxv) Now let us have a look at the
greeting cards and the letters sent by Bharti
to Nitish ( deceased) to find out from the
163
contents as to what was the relationship
between the two, whether it was merely
friendship or something more than that which
could be termed as love affair
which
they intended to culminate in marriage. xxvi) It is pertinent to mention that
PW 38 Bharti Yadav has admitted in her
testimony that she sent all these letters and
greeting cards to Nitish. Besides the greeting
cards Ex.PW 30/1 and 2 there are other
greeting cards and letters and gifts Ex PW
30/C 1 to C83 sent by Ms. Bharti Yadav to
Nitish Katara, the deceased. xxvii)
The perusal of the greeting
cards Ex PW 30/1 and 2 shows that these are
simple greeting cards written by Bharti to
Nitish which do not reflect any love affair
between the two but only friendship. It is
164
strange to note that the IO out of a lot of 85
greeting cards and letters and gifts chose
only these two greeting cards Ex. PW 30/1
and 2 which were only reflecting friendly
relations between the two and nothing more
than that. Whereas the other greeting cards and
letters which I shall discuss hereinafter one by
one are reflecting something more than
friendship. It appears that intentionally the IO
picked up only these two cards and avoided to
bring other material on record which was more
relevant to prove that the relationship between
the two was not merely friendship but
something more than that. xxviii) The letter Ex. PW 30/C1 is the
most important document to prove the
relationship between Bharti and Nitish . The
same is reproduced as follows:
165
“ Dearest Chimpu,
I guess tis is the first time m writin directly to
you... although I never wanted to ......but as you say
probably I cannot xpress myself... I know m not only
bad m real bad at it... but i guess i made it clear the
very first day... alongwith i said many more things
which probably you even won't remember by now...
don't ask m what??? coz' even I cannot recall
nethin.......
Hey Chimpu, don't you think wat a jerk I m? And
I completely argu with you... i m a jerk!!!! u hate my
''pata naiz''
and ''
kuch naiz''.... but they are part of
me..... that is wat bharti is make up of .... very
irritatin..... rite??? now m not asking you but m damn
sure and infact tellin u tht u did not just made a
mistake.... u made a blunder by choosin me......
Agree!!! u cannot leave.... neither can i..... coz i love u
and i love more than nebody or nething in this world....
infact i consider u as my world.....
I did try to change myself 4 u...... and i guess was
166
even able to change myself ....but i guess not upot ur
mark....ya! I know you don't xpect nethin from me.... u
dont have ne xpectations xcept 'honesty'.... rite???? but
still i went wrong somewhere.... where?? I myself don't
know.....And please I know you respect my views and
appreciate that I 've changed 4 u.... but I guess I
haven't told u tis before i give a damn to ur respect n
appreciation.... I don't want them..... all I wanted was
'u' and not words of appreciation.... i don't know
wheather I sud or i sud not b sayin all tis.... huh! Ya
sure u 'll b hurt once again.... because of me and only
me.....But lets try and figure out tis one also... do u
realise sometime in ur life that even I get hurt...even I
have that little place called heart... which hurts,
screams .... ana above all feels everthin '. I know
Chimpu, m being very rude, blunt and straight but i
guess i can't help it... u say u can't take it nemore' Cud
u please tell me wat is it that u cannot take nemore????
kuch nahi..... ha! Chimpu, I means no chains..... no
need to stick to me if u think u cannot survive with
167
me... only because u love me....i guess abhi u need to
know a lil more about wat love is???? For suer its not
just a word.... not just a word! Maine tumhe kabhi
'jeeney' se nai roka kabhi..... 'mujhe jeenay dou bharti
please'........ Seriously its not very pleasant to hear all
this............. it not only hurts..........it tears u apart ......
and i mean it!
ME, lemme explain myself in ur words......full of
negative thots........huh!.......... m pain in ur ass......all i
can do is to crib.........bonus point with me is I cannot
speak...... i mean xpress myself..... rite???? plus m
damn irritatin....... i repeat things...... give unnecessary
suggestion...... not serious ........... n even after knowin
ur schedule always intrupt in that........ so,,,,,, how does
it sounds?? Bad na...... real bad..... (if u want u can add
few more) But hey, just subtract all of these out of
bhati n boom ! Watta u get.... hey, thats a girl but i bet
boy she is not bharti.... she is not..........Remember, I
asked you that please neva ask me to change b'coz
bharti loves herself b'coz of wat she is and not wat
168
people want her to b???? but again i was far away from
reality... again my fantasy... how can things b just the
way i wanted them to b??? Such a idiot i m .........I
know probably is asked too much from u....... too
much..... but u know wat i always wanted somebody to
b mine.....n where I cud feel it not only in his words but
in his actions too.... Dekha, again me and my damn,
fuckin fantasy world ! A person who'll make me feel
special all the time........Tellin u the truth... Chimpu
reality sucks... it stinks.... I hate myself for it ..... I u
know wat i always loved u as my friend..... u were a
sweetheart..... i thot u understand and u care.........but
m realisin that things change....... they do...... And i
wanted somebody to understand me..... but i guess u
and i don't...... u want me to xpress myself ..... Ek baat
batao... kaha tak loon main? Kahan tak....... u want me
to understand u.... i try but don't succeed..... Sorry ! M
not as gud as u thot me to b........ From last 6 months m
just hopin that thing will change from better to gud....
but u know wat they are going the opposite way..... they
169
are turnin from bad to worse..... I cannot talk to
nebody..... nobody.... u know how lonely I feel at
times..... tumhe guss aata hai tou tum phir b nikal laete
ho... jaa raha hu?? kahan? Pata nai..... agar mai aisi
situation may hu tou bolo mai kya karoon?
Hmmm.. tum jab tak 10 baar nai puchoge...... tab tak
mai kuch bataungi nai... haina? U have to ask several
times before I cud answer.... thats irritation.... I
know ..... but even m helpless.... can't help it and its not
u askin again and again which makes me speak ..... its
the time which i take to open up.... to speak..... And yes
u r rite..... absolutely correct I want importance and
attention.... par kabhi ye socha hai y do i want it??
B'coz m nor getting it.... agar mujhe jo importance
chahiye who mil rahi hoti.... tou b mai aise hee karrti
kya??? can u realise this when do a person..... m
talking from a kid to a grown up.... everybody needs
attention and if m doing the same wat is wrong with
me????EVen I agree that m selfish.... yes i m ! all i can
think bout is myself.... may b that is why i stepped into
170
this relationship because again I was lonely and I
wanted sumbody... who can understand me and keep
me happy..... but i guess m always xpectin too much
from u.... but i can't help it...... seriously i can't ....
Chimpu, i wanted more of u.... ore of ur time..... more
of ur love.... ur concern... ur attention.... everythin....
mai saadi hui rahti hu.... kya karun.... Sorry ! But
kuch kar nahi sakti...... har cheez is tum aadat daal
loge... haina? But i don't want that.... i don't want that
u sud jhelo me..... i want u to understand me and accept
me.... i want to live life... and i want u live..... it seems
as if u r suffocatin urself with me... u want explanation
for each and everythin in life which I can't give...
things mite b too certain in ur life always but they r not
in my case.... things which i myself don't know how can
i tell u???? small things like days plan... want m doin
next etc....... and above all m really sorry i cannot
cannot please everyone....... even i want a breather
sumwhere...... which i always try to find in u but
somehow u always get irritated n instead of feelin
171
better i feel bad... broken !!!! I love u Chimpu I love a
lot.... can't live without u... can't imagine my life
without u but....... i still don't know where exactly m
headin too...... & at this point of time m unable to
figure out nething...... PLEASE HELP ME !. ''
xxviii) From the aforesaid letter it is amply
clear beyond any doubt what to talk of beyond
reasonable doubt that Bharti was in love with
the deceased. She has referred Nitish as her
world and that she loved him more than
anybody or anything in the world. In this
letter she has referred herself as a very
irritating person and accused the deceased of
making a blunder by choosing her. At the
same time she wrote to him that she did try
to change herself for him and was even able to
change herself but she clearly wrote in the
172
letter that she did not care for any respect or
appreciation from the deceased in this regard
but all she wanted was Nitish and not words
of appreciation.
xxix) Ex.PW 30/C 2 is a piece of paper
on which Bharti has addressed Nitish as
'Chimpu' and herself as 'Ghugu' and has written
that she loves him tons and he is his life and
the meaning to this life. xxx) Ex PW 30/C 3 is a greeting card
dtd. 17.10.01 written by Bharti as Ghugu to
Nitish as Chimpu.. It is mentioned in the card
that there was relationship between the two
for the past 10 months but she wanted to stay
in love with him not for rest of his life but for
rest of her life. xxxi) Ex.PW 30/C 4 is another letter
written by Bharti to the deceased on
173
22/7/2001 at 2.30 am on the letter head of
Clark's hotel the Mall Shimla. The letter is
running into four pages which is descriptive
of their relationship. It is another important
letter to come to the conclusion as to what
relationship the two were sharing with each
other. To appreciate its contents and the
feelings Bharti had for the deceased , this letter
is also reproduced as follows:
Dearest Chimpu,
I know kinda weird getting nother written note
from me. But, I just wanted to let u know that ' i love
you' more than these words can express. All i want in
my life is to be with u always. I guess i've never prayed
so much for nethin in my life as i pray for 'u', to be
with u, to be in ur arms. You are my sweetest dream
cum true and one thing 'bout which m damn sure is
174
that i cannot live without u. If i have a life its with u
otherwise for sure m not gonne live. There is only one
thing m scared of... that is one fine day u turning to me
and askin me 2 fuck off. Because then m nowhere.
Without you there's no meanin in my life.... i can feel a
vaccum within me without u. U r the only thing Oops !
I mean the only one i ask for.....i 'll go nething for you
but cannot even bear the mere thot of living without u.
Chimpu I love u and i love u a lot. Sweetheart, I
dunno y m writin tis 2 u but I really really missed u on
my birthday... i tried. I howled and did xactly the way u
wanted me to do.... and u no what hurted me the most...
the fact the I wa not able to even see ur face on my
birthday.... u huggin me and wishin me face to face just
remained a dream for me..... I know from next year
175
onwards u 'll always b there.... but honey tis year wud
neva cum bak... tis was my first b'day... and it was not
with u and i was tou not even close to you i was very far
away.... sabko happy rakhna hai haina?..... nai
sweetheart m no complain n m not cribbin m just
tellin u tht i didnt feel gud n next year is tooo far
abhie.... N thanku ! Pudda I felt like the luckiest person
on earth wen I received ur cards in ur sweet special
way... ur gesture was so sweet that I dun have words to
define... after each card i was waitin for nother.... ever
after receiving the last letter I was still waitin 4 yet
nother....''Yaha ka mausam bahut haseen phir b dil tou
udass hai yun tou tumse door sahi mai dil tou tumhare
paas hai''
Love u naa ! ((*)) yaha the weather is damn
xc..... the cool breeze, clouds in ur feet, thanda...
176
ummmm everythin is just purrfect the only thing which
is missin is 'u'
. Its almost 3:00 in the night... everythin
is quiet.. i can clearly hear the drizlin sound... can feel
the 'thandi hawa' and the silence of the night.... just
wish u were here to hold me in ur arms and i cud lie
there in ur lap like a baby... but then again a dream of
mine (n it will pucca cum true one day!!) i am missin u
Chimpu..... badly :( tumhari bahut yaad aayi saara din,
saara waqt.. pata nai kab tumsae mulungi... ya.
Hopefully on tuesday... m just waitin... i wanna fly
away n cum 2 u ...b with u in ur arms cuddly n cozy...
but :( hard luck.
Baby m Missing u !
Please aa jaao na
Mele paas!
177
Please ! Love U !
Love U !
Love U ! Love U ! Love U
!
I love you Chimpu U r m life my love cannot live
without u... life doesn't have ne meanin without u...
kabhi saath matt leave karna varna survive nai kar
paungi.... promise karo please.... that u'll always with
me and for me, will neva betray or cheat me... i wont be
able to take it... sab mujhe darate hai, samjate hai but i
trust u Mere trust ko kabhi tootnay matt dena.... I love
you... ab mujhe cute baby is that hug kao... kissi dou
and promise dou ki u 'll always b MINE.''
178
xxxii) The perusal of this letter
apparently gives a loud and clear message that
she was madly in love with the deceased.
Giving respect to her feelings I do not want to
comment any more on the contents of the
letter as it was something too personal to her.
However, at the time I cannot restrain myself
from observing that as per this letter Bharti,
without Nitish, had no meaning in her life.
She could not even think of living without
him. Besides, the contents of the letter shows
that it was Bharti's birthday when she was
away from Nitish and missed him like
anything but she was sure that next year
onwards he ( Nitish )would always be there
with her but still she repented that the birthday
she celebrated without him would never come
back. She made a request to Nitish in the
179
letter that he should never leave her or she
would not be able to survive. She also sought
promise from him that he would always be
with her and for her and will never betray or
cheat her as she won't be able to take it. It
is important to note that in this letter she has
also made reference that she had been
threatened by everyone and they had also
tried to make her understand but she still
trusted Nitish. She also mentioned that she
has to please everyone.
xxxiii)
The argument of the
prosecution is that in this letter Bharti had
expressed her fear from her family regarding
her relationship with the deceased which proves
that it was not approved by her family
members and that this was the motive behind
the abduction and murder of the deceased by
180
the accused persons. Whereas on the other
hand the counsel for the accused persons have
submitted that this one line in the aforesaid
letter is of no consequence and does not prove
that whatever relationship was there between
the two was known to the accused persons and
they had any objection to the same. xxxiv)
However, in my opinion the
language of the letter is absolutely simple and
straight. Bharti had expressed her feelings for
Nitish with open heart in the letter and as
per the contents of the same she was even
hopeful of getting married to the deceased
during the next year ie 2002, though she did
not use the word ''marriage'' in the letter but
the contents of the same lead to no other
conclusion as she clearly wrote in the same,
“ Sweat Heart , I do not know why I am
181
writing this to you but I really, really miss you on
my birthday.... I cried, I howled and did exactly the
way you wanted me to do ....and you know what
hurted me the most, ....the fact that I was
not
able to even see your face on my birthday ...you
hugging me and wishing me face to face just remained
a dream for me. I know
from next year onwards you will always be there ... but honey this year would
never come back.'' She also wrote in this letter the
reason as to why she could not celebrate her
birthday with the deceased. She wrote in the
letter
Sabko happy rakhna hai haina?
which also leads to the inference that she had
been sent to Shimla on her birthday under
pressure and she could not celebrate her birthday
with Nitish despite the fact that she wanted to do
so. 182
It is also written in her aforesaid letter
that
Sab mujhe darate hai samjhate
hai but i trust you mere trust ko kabhi
tootnay mat dena, i love you
.
The above referred contents of her
letter shows that she was threatened by her
family members who did not approve of her
relationship with the deceased and were trying to
persuade her to severe of her relationship but she
still trusted the deceased and was hopeful. Even
in the letter Ex.PW30/C1 she speaks in guarded
words that for the last 6 months she was hoping
things would change from better to good but
they were turning from bad to worse. She also
mentioned in the said letter that she cannot talk
to anybody and how lonely she was at times.
These letters further reflect unpleasantness about
183
her relations with Nitish at her house and that
situation was getting from bad to worse. The
letter means to say that her affair was known to
her family but was not approved. Xxxv)
Documents Ex. PW 30/C5 to C 15,
Ex.PW30/ C 18 to C 73, Ex.PW 30/ C 75 to
C78 and Ex.PW 30/ C 83 are greeting cards
sent by Bharti to Nitish on different occasions
such like birthday, friendship day, valentine day
etc. All these cards are nothing but full of love
from Bharti to Nitish. The greeting card Ex.
PW 30/C 20, though is not bearing any date but
one thing is clear from the card that when it
was sent by Bharti to Nitish she was in a
confused state of mind and did not know what to
think, what to decide and what to do but she
trusted Nitish and believed in him and wanted
him to live upto it so as not to regret anything
184
later. It appears from the aforesaid card that
the confusion which prevailed in her mind was
regarding her relationship with the deceased as to
whether she was on the right path and whether
she could trust the deceased to be sincere to her.
xxxvi) In the greeting card Ex.PW 30/C42
she has made it clear that the deceased was
not only her best friend but he was her lover
too.
xxxvii) Ex.PW 30/ C 74 is the bed sheet
of blue, red and white colour with boxes
printed thereon and in each box the word Love
is mentioned which must be thousand
in number. PW30 Neelam Katara has claimed
that this was gifted by Bharti to Nitish.
However, when Bharti appeared in the
witnessbox she denied that she gave this bed
sheet as a gift to the deceased. The reason
185
was obvious as it was not bearing her writing
which could be compared with her admitted
writing and it is only for this reason she
admitted all the letters and greeting cards since
they were in her own writing and could be
proved otherwise also through the expert
evidence. xxxviii) PW 30 Neelam Katara further
produced on record the valentine day album
Ex. PW 30/C 79 and testified that it was sent
by Bharti to Nitish, which consists of
photographs Ex. PW 30/C 80, C 81 and C 82.
of both Nitish and Bharti together. xxxix) The argument of the defence is
that the testimony of Neelam Katara is full of
improvements and thus cannot be relied upon.
However,
I find no force in the above
arguments of defence. Perusal of the cross
186
examination of PW 30 Mrs. Neelam Katara
shows that she had answered the queries
made by the IO only. Regarding her
statement U/s 161 Cr.PC recorded on 14.03.2002
she stated that she answered only queries of
the IO and did not tell at what she knew.
However, she categorically stated that she had
told the IO the entire episode about the travel
of his son Nitish Katara and friends to
Bombay by Jet Airways on Bhawna's birthday.
She was confronted with her statement Ex.PW
30/DB dtd..14.3.2002, where this fact was not
recorded. Once she categorically stated that
she had made this statement to IO, therefore
now it was duty of the defence counsel to
have questioned the IO, whether she made any
such statement to him and if Yes,
then why
he did not record it. However, in the present
187
case the IO was not cross examined by either
of the defence counsel to this effect. As such it
is presumed that she did make such statement
to the IO but was not recorded by him. My
this view is supported by an authority reported
in AIR 2000 (SC) page 1833., whereby it
was held that :
''R
eading Section 161 ( 2)
Cr PC with the Explanation to Sec. 162
Cr. PC, an omission in regard to be
significant must depend upon whether the
specific question, the answer to which is
omitted was asked of the witness. It was
held that in this case the Investigating
Officer, was not asked whether he had
put questions to a eye witness wife of one
188
of the deceased person asking for details
of the injuries inflicted or of the person
who had caused the injuries . It was held
that though the witness had not given to
the police particulars of who had caused
which injury, she had not deviated from
the actual occurrence and the manner it
had happened. ''
The aforesaid authority is fully
applicable to the facts and circumstances of the
present case as PW 30 Smt Neelam Katara had
answered only the queries put to her by the IO
which she had explained in her chief examination
and her detailed statement before the Court in
no manner deviated from what she had stated in
her complaint Ex.PW 1/1 and her statements
U/s 161 Cr PC. Ex. PW 30/DA and DB.
189
xl) Moreover this fact is also admitted
by Bharti Yadav in her testimony that she
alongwith Nitish Katara, her sister Bhawna
Yadav, her fiancee
Deepak Yadav and one
R. Yadav had gone to Bombay for celebration
of the birthday of her sister Bhawna Yadav,
therefore the testimony of PW 30 Neelam
Katara to this effect stands corroborated and is
true.
xli) The other relevant portions of her
testimony regarding which she was confronted
with her previous statement are to the effect
that as to whether she told the police that after
MBA Nitish Katara s friends moved out and
Nitish did not go out due to his fathers
condition and as far as she knew that Bharti
Yadav had not taken any job and their
friendship then moved closer and they fell in
190
love with each other. However, she categorically
stated that she do not remember if she had
told the police the above facts but she
definitely told the police that Bharti and
Nitish had fallen in love with each other.
Again she was confronted with her statements
Ex.PW 30/ DA and DB to the effect that she
had told the police that the size of flower
bouquet sent by Bharti Yadav to Nitish
Katara was increasing specially on birthday of
Nitish in April 200l nor she could remember
if she had told the police that they were
arranging get together but she insisted that
she had told the police that they were in love
with each other. However, again it was the
duty of the defence counsel to have questioned
the IO as to whether Neelam Katara had told
this fact to him and if so why these were
191
not recorded by him in her statement. It was
only the IO who could answer as to why he
skipped these facts from her statement. It is
pertinent to mention that the witness explained
before the Court during the cross examination
by the defence counsel that she had made
statement to the police when her son was
missing and then again after two days of his
cremation, as such she was under tremendous
emotional pressure and tension so she could
not remember exactly what she had told to
the police, however she clarified that when she
deposed before the Court there was certainly
more clarity of vision in her mind and she
could think without emotion, she very fairly
admitted that she did not inform the police
that she could gather the intimacy and
closeness of her son Nitish with Bharti from her
192
mother's sense but she did not consider it
necessary to inform the police. She further
admitted that she did not tell the police
specifically that she learnt in Dec. 2001
about her son's intention to marry Bharti and
their being in love with each other. She
simply told about their intention to marry and
their love with each other without telling the
date, month or year when she came to know
about this fact. She admitted in her cross
examination that she do not remember if she
had told the IO that she was told by her son
that Bharti was waiting for an opportunate
time to talk to her father, her brother's
marriage was fixed for after elections and she
was waiting for when she would be able to
talk to her father and would be able to
convince him for this marriage. The contention
193
of the defence counsel that the said statement
of the witness is after thought and is
motivated to falsely attribute knowledge to
the accused persons about any such relationship
between the deceased Nitish Katara and
Bharti Yadav. It is submitted that if there
had been any such information available to
Neelam Katara she ought have mentioned
the same in the FIR or in her statements
U/s 161 Cr. PC. However, I do not agree with
the aforesaid contention of the defence counsel
as these facts which she had narrated in the
Court are only explanation/elaboration of what
she informed the police in the FIR and
statements U/s. 161 Cr. PC. Moreover FIR and
statement U/s 161 Cr.PC need not contain all
the details and it is sufficient if they contain
the broad features. It is held by the Hon'ble
194
Supreme Court in the authority reported in
2006 (III) AD (Cri.) (SC) Page 241 that : ''
It is well settled law that
FIR is not an encyclopedia of the facts
concerning the crime. Merely because of
the minutes details of the occurrence
were not mentioned in the FIR, the same
cannot make the prosecution case
doubtful. It is further held that it is
sufficient if a broad picture is presented
and the FIR contains the broad features.
For lodging FIR, in a criminal case
and more particularly in a murder case
the stress must be on prompt lodging of
the FIR.''
It is further held in an authority
195
reported in 1998 CrLJ 2046 by the Hon'ble
Allahabad High Court that :
''FIR and the statement
recorded U/s 161 CrPC are not an
encyclopedia to have given each and
every minute details which had come
into light during the deposition in the
Court some witnesses do not think it
proper to get it mentioned in the FIR or
in their statements recorded U/s 161 Cr
PC, but it does not mean that the facts do
not exist. ''
xlii)
In view of the above authorities, all
these details as narrated by PW30 were not
required to be given in the FIR or in the
statements U/s. 161 Cr PC as these facts are only
196
explaining as to why and how the accused
persons were averse to their marriage. The
witness was not sure if she had stated to the
police that she asked her son as to what were
the objections being raised against their marriage
and he told her two objections, firstly that they
wanted to marry in their own community and
secondly, they consider the service class as poor
class. She has already explained the trauma
under which she was at the time she lodged FIR
and she made statement to the police. She has
further clarified in her cross examination by
deposing in the following manner:
“I made an umbrella statement at that time
and I was under great tension due to my son and
whatever facts, I could tell at that time, I told and
whatever was equired by the police specifically I
197
answered, now after all this, I have told all facts with
more clarity and in more details.”
Even if she did not state all these facts
to the police which she testified in her chief
examination, these cannot be termed as
improvements as she has only explained the
relationship between Bharti Singh and Nitish
Katara and has elaborated the contents of
the FIR and statements U/s. 161 Cr. PC. xliii)
It is held in the authority reported
in 2000 (6) (Supreme) page 146 that :
''on an analysis of the
statement of PW 2 (which is party of Vol
IV of the paperbook), his statement under
Section 161 of the Cr PC and the
deposition made by him on 15.10.1984
during investigation (which is part of
198
Vol. III of the paperbook) we have come
to a conclusion that there is no material
improvement, which less contradiction in
the deposition made by him before by the
Trial Court after being granted pardon.
The so called improvements are in fact
the details of the narrations extracted by
the Public Prosecutor and the defence
counsel in the course of his examination
inchief and cross examination. ''
xliv) The aforesaid authority is fully
present case as what has been termed as
material improvements or the contradictions in
the statement of PW 30 Mrs Neelam Katara
199
recorded in the Court with her previous
statement, these are not material improvements
much less contradictions but are infact the
details of the narrations extracted by the Spl.
PP for State and the defence counsel in the
course of his examination in chief and cross
examination.
xlv) Thus, the statement of PW 30 Mrs.
Neelam Katara regarding the visit of Nitish
Katara and Bharti Yadav to Mumbai on the
occasion of the birthday of her sister
Bhawna Yadav, Bharti
s opening bank
account with BNP Paribas Bank, Connaught
Place, New Delhi, giving her residential address
as ie of Nitish Katara ie 7 Chemsford
Road, New Delhi which is based on documents
and is admitted by Bharti Yadav during her
cross examination by Spl. PP for State which
200
proves that PW 30 Neelam Katara is a truthful
witness. Besides, since she has already
explained the trauma she suffered on account
of missing of her son and thereafter he was
found murdered and was cremated two days
before her second statement U/s. 161 Cr PC
which was recorded on 14.3.02, it would be
inhuman to expect her to give all the minute
details of the relationship between Bharti
Yadav and Nitish Katara to the police, more so,
when her son went missing and she was
expecting happening of untoward incident at
the hands of the accused persons who were not
enjoying good reputation in the society.
xlvi) It is pertinent to mention that
both the defence counsel did not give any
suggestion to Neelam Katara that her son
did not disclose to her about his love affair
201
with Bharti Yadav and about their plan to
marry. She was also not suggested that her
son did not disclose to her in Dec. 2001 about
his intention and love for Bharti and he told
her that he was not in a hurry to marry as he
wanted to settle down first but Bharti's father
was looking a match for her and therefore
she may have to disclose her father about her
love. Similarly in the present case as referred
above no suggestion was given to PW 30
Neelam Katara as to why she should have
given false evidence against the accused
persons. Nor any suggestion was given to her
that the facts which she deposed in her chief
examination, she did not get the knowledge
of the same from her son Nitish Katara. In
the absence of any suggestions to this effect
that Nitish Katara her son never disclosed to
202
her about his love affair with Bharti Yadav,
their plans to marry and the knowledge of the
same to the accused persons, it is presumed
that the testimony of the witness is truthful
and is not denied by the defence. I find no
reason to disbelieve her testimony, particularly
when she had no motive to depose falsely
against accused persons. Rather in such type of
cases the complainant would always look for
the real culprit to be punished then the
innocents. The defence counsel have only
tried to contradict her statement before the
Court with her previous statements Ex.PW
30/DA and DB and has termed that her
testimony was full of improvements whereas it
has already been observed above that her
testimony was not full of improvements and
contradictions from her previous statements but
203
she had only given the details of the
narrations extracted by the Spl PP for State
and defence counsel in the course of
examination in chief and cross examination.
xlvii) Regarding the argument of the
prosecution that no suggestions were given to
PW 30 Mrs. Neelam Katara and other relevant
witnesses with regard to the incriminating
evidence against the accused persons the
defence counsel has cited an authority reported
in AIR 1969 Gujarat 69 Koli Trikam Jivraj
and Anr Vs The State of Gujarat whereby it is
held in para 18 of the judgment as follows :
''
there is another principle
which is equally to be borne in mind that
suggestions made in the cross
examination of prosecution witnesses
204
cannot be used to fill in the gaps in the
evidence of prosecution. Burden lies on
the prosecution to prove the guilt of the
accused. Such suggestions cannot stand
higher than the statement of the accused
U/s. 342 of the Cr.PC. The statement of
the accused U/s. 342 Cr.PC cannot be
used against the accused unless the
prosecution proves its case against him by
satisfactory evidence. At times it is used
only to lend an assurance to the case of
the prosecution case but it can never be
used to fill in the gap in the evidence of
prosecution.
The Ld. Sessions Judge was
205
obviously, in our opinion, in error in
relying on the suggestions put in the cross
examination of prosecution witnesses
Dharamshi and Premji by the lawyer of
the accused, accepting them as statements
of the accused and binding on them, and
treating the case put forward therein as
a circumstance against the accused. In
the present case the evidence led by the
prosecution is totally insufficient to prove
that the accused had committed the crime
and no question of lending assurance to
prosecution arises. The circumstance that
suggestions were put to the prosecution
witnesses in their cross examinations that
206
Dharamshi and Talshi beat the accused
Nos 1 and 2 outside their vadi cannot be
used against the accused to fill in the gap
in the evidence of prosecution.''
Though I fully agree with the aforesaid
authority to the effect that the onus is always
on the prosecution to prove its case and the
suggestions to the witnesses cannot be used to fill
in the gaps. However, the aforesaid authority is
not applicable to the facts of the present case
wherein from the testimony of Smt Neelam
Katara as well as the admission of PW 38
Bharti Yadav in her chief examination about
writing of letters/ greeting cards to the deceased
it is proved by the prosecution that she had
affair with the deceased and the accused persons
had the knowledge of the same. For this reason
207
it was necessary for the defence to have put the
relevant suggestions to the contrary to the
prosecution witnesses which has not been done. xlviii)
On the other hand, Spl PP for
State has cited an authority reported in 2007 IV
AD (Cr.) (SC) 445 titled Subhash Vs State of
Haryana wherein it is held by the Hon'ble Apex
Court that :
“nothing had been
suggested to PW 8 as to why he should
have given false evidence against the
appellant. No reason to disbelieve the
sequence of events narrated by PW 8.” The aforesaid authority is fully
present case . As there was no reason for PW 30
Neelam Katara, the complainant to falsely
208
implicate the accused persons by alleging falsely
that her son Nitish Katara and Bharti Yadav had
love affair which they wanted to culminate in
marriage and that this fact was known to the
accused persons who were averse to the
marriage. PW 30 has specifically stated in her
statement that in Dec 2001 her son Nitish Katara
had told her about his intention and love for
Bharti and their plan for marriage and that her
brothers were aware of their intention and they
were averse to her marriage with him. I find no
reason to disbelieve her aforesaid testimony. xlix) It is further clarified that the present
case is based not on direct evidence but on the
circumstantial evidence and as such in the
absence of any direct evidence to the effect that
both Nitish Katara and Bharti Yadav had love
affair and this was not to the liking of the
209
accused persons, it could only be proved
through Nitish Katara who is no more alive,
thus it has to be inferred from the
circumstances. First such circumstance is as
to what transpired between Neelam Katara and
Nitish Katara when he was alive. Merely for
the reason Bharti did not support the
prosecution case does not lead to the inference
that Neelam Katara is a false witness,
particularly when she had no reason to falsely
implicate the accused persons nor the defence
has alleged any enmity between Neelam Katara
and the accused persons nor she was so
suggested during her cross examination.
Besides, Neelam Katara categorically stated in
her chief examination that since Nitish Katara
after college remained in Delhi due to his
father's condition and as far as she knew
210
Bharti had not taken up any job, which is
brought them closer and they fell in love. She
has also stated that the size of the flower
bouquet being sent by Bharti was increasing so
from her mother's sense she could gather the
closeness and intimacy was increasing and that
in Dec. 2001 Nitish told her their intention
to marry and that father of Bharti was
looking for a match for her and therefore she
may have to disclose to her father about her
love and their intention to marry and that her
brothers knew about her intention but they
were averse to their marriage with him.
However, she was confident that she would be
able to convince her father.
l)
The witness was not given any
suggestion to the contrary by the defence in
her cross examination. Moreover, the fact that
211
Nitish used to talk to his mother about their
relationship is admitted even by Bharti in her
cross examination by counsel for accused Vikas
Yadav, wherein she stated as follows:
''Once Nitish mentioned to me for the
reason I belonged to a particular family, his mother
was not comfortable with our relationship. She did
warn him to be friends with me, since my caste is
Yadav and Mr DP Yadav is my father”
li)
The said statement of Ms Bharti Yadav
corroborate the statement of Smt Neelam ktara
in her chief examination which is reproduced as
follows:
“ Nitish had told me that Bharti was
planning to tell her father about their intention about
their intention to marry and that her brothers knew
212
about her intention but they were averse to her
marriage with him but she was confident that she
would be able to convince her father. I was told by my
son that Bharti was waiting for an opportunate time
and she was waiting her brother to go out of town
after the election, and his marriage was fixed as far as
I know for 6th March and she was hopeful that after
marriage he goes out she would be able to convince
her father and would be able to talk to her. I asked my
son as to what was the objection being raised and I was
told that there were two objections, one that they will
marry the girl in their own community and secondly
because our family was of Govt. servant and they
consider the service class to be poor class. I also had
my own objection and after considering pros and cons
213
I told my son that it would not be a suitable marriage
but my son was adamant. I had told my son about the
possible interference and that he (brother of Bharti
was already facing criminal case etc) but my son was
looking everything through tinted glass and was
adamant in marrying her.”
lii)
It is further important to notice
that even the family of Bharti Yadav was well
acquainted with the affairs of the family of
Nitish Katara as deposed by Neelam Katara
during her chief examination. She deposed
to this effect as follows:
“ From the police station I decided to go to
house of DP Yadav to meet mother of Bharti, I
requested police persons to show me the house, they
214
took me to the house and pointed out to house and then
left. I then went to the house and mother of Bharti
herself had opened the door and took me inside. I
confirmed from her and she told me that she was
mother of Bharti. She spoke to me courteously and
behaved with me nicely.” She further stated as follows:
“ I found her upto date about my family
affairs, my husband was ill, she was knowing about
illness of my husband, I was advised surgery only 2
days back and when I told her that we all were in
tension and my husband was sick, she told me that she
knew that my husband was ill and I was to undergo
surgery and that family was in tension.” which shows that even Bharti was
discussing the affairs of the house of Nitish
215
Katara with her family members. This also leads
to the inference that Nitish was known to the
family of Bharti Yadav and their affair was also
known to them. liii) Prosecution has examined Bharti Singh
Yadav as PW38. As per the prosecution it is
the relationship between this witness and the
deceased Nitish Katara which led to his
abduction and the murder by the accused
persons.
liv) PW 38 Bharti Singh Yadav testified
that she had several friends in IMT Ghaziabad
namely Gaurav, Nitish, Gagan, Pooja and others.
She stated that Shivani Gaur was her school
friend, who was also in IMT Ghaziabad but in
a different course. After finishing her MBA she
joined college of CAS and at present she was
doing M. Sc from London. She stated that she
216
was friendly with Nitish Katara( deceased) . In
answer to question of Spl PP for the State :
'
'Q
ues: Whether they both were in love and wanted to
marry?
She replied,
Ans. I used to like him but there was no proposal for
marriage.”
During her chief examination she
admitted the photographs Ex PW 11/1 to 4 in
which she is appearing alongwith the deceased.
However, she stated that she do not remember as
to where these photographs were clicked. lv) The prosecution has also relied
upon the call record of mobile phone of Nitish
Katara bearing No.9811283641 and mobile No.
9810038469 which was registered in the
name of Bhawna Yadav but as per the
217
prosecution this mobile was used only by
Bharti.
lvi) PW 38 testified that she did not have
any mobile at that time. She denied exchange
of gifts with Nitish, however she stated that she
used to send greeting cards to her friends and
also used to receive from them. She also
denied that she gifted any wrist watch to
Nitish. This witness also denied that she made
any statement to the police in the present case.
She was specifically asked by Spl PP
for State:
''Q: Did you make any statement to the police?
She replied, Ans: One of the lady police official had conversation
with me but I did not know whether it was reduced into
writing.'' 218
This witness was declared hostile by the
prosecution as she was found resiling from her
previous statement dtd. 02/03/02. She was cross
examined at length by Spl. PP for State. lvii)
During her cross examination by Spl.
PP for State she testified that except her
conversation with the lady police official there
was no interrogation of her by the police in
relation to the present case and whatever they
asked her she replied but she did not know if it
was reduced into writing. She voluntarily stated
that she did not read her statement. She
claimed that she had conversation only with the
lady police official after 3 /4 days marriage of
Shivani Gaur. When a specific question was put
to her by Spl. PP for State that her statement
was recorded by the police on 2.3.02, she
answered :
219
“ I do not know if it was my statement to the
police but I did have conversation with the police but I
do not remember the date, when this conversation took
place. “
lviii) She further claimed that she never
had any conversation with Anil Somania, SO PS
Kavi Nagar in connection with the present case
and she had only conversation with the lady
police official. She was confronted on material
particulars with her statement Mark 38/A
which was lateron exhibited as Ex.PW 35/AB
in the statement of SI Anil Somania, IO of
the case, who categorically stated that he had
recorded the said statement at R 4/16, Raj
Nagar Ghaziabad in the presence of lady SI
Anju Bhadoria and Sh DP Yadav, father of Ms
Bharti Yadav. The perusal of her testimony
220
further shows that she has admitted to have
informed the lady police official during in her
conversation that while studying in IMT
Ghaziabad she had become friendly with Nitish
Katara and she had also told her that Nitish
had Gypsy of Green colour though she denied
she did not tell the number of the vehicle to
the police since she did not know the same .
Perusal of the statement Ex PW 35/AB recorded
U/s. 161 Cr. PC shows that this fact finds
mention in the statement that she had become
friendly with Nitish Katara while studying in
IMT and Nitish used to come from Delhi in
Green Colour Gypsy, though in her statement
the number of the vehicle is also mentioned.
She denied that she had informed the lady
police official that their friendship developed
into love and she started liking Nitish Katara
221
from her heart and she was confronted with he
statement Ex. PW 35/AB where these facts
find mention. She also denied that she had
informed the lady police official that after
completing course in 2000 from IMT Ghaziabad
they continued to be in touch with each other,
got photographed and used to go out or that
Nitish used to love her very much and he had
a talk with his mother about their marriage or
that on 14.2.02 on valentine day they had
met, exchanged the gifts and also got
photographed. She was confronted with her
previous statement Ex.PW 35/AB to this effect
where all these facts find mention.
lix) During cross examination by Spl PP for
State she further denied to have informed the
lady police official that on 15.2.02 there was
ladies sangeet in the house of Shivani at 58
222
Ghaziabad where she alongwith her friends
had taken part in dance or that in the
marriage also she had danced with Nitish
Katara. She was again confronted with her
statement Ex.PW 35/AB where these facts find
mention. lx) She further denied to have
informed the lady police official that on 16.2.02
Sukhdev Pehalwan r/o Dewaria who used to
work in their office at Bulandshahar had also
come alongwith his brothers Vikas and Vishal in
the marriage of Shivani. She was again
confronted with her statement Ex PW 35/AB
where it is so mentioned. She voluntarily
stated that she did not know any Sukhdev
Pehalwan . lxi) She further denied that she informed
the lady police official that at about 1.30 am
223
she came to know that her brothers Vikas and
Vishal alongwith Sukhdev Pehalwan had called
Nitish Katara and took him away and she
become upset and she searched for Nitish
Katara in Diamond Palace but she could not
trace either his brothers and other accused
Sukhdev Pehalwan or Nitish Katara .She was
confronted with her statement Ex.PW 35/AB
where it was found so recorded.
lxii) She further denied to have informed the
lady police official that her brothers and
Sukhdev Pehalwan had come in the marriage of
Shivani in Tata Safari which fact is found
mentioned in her statement Ex. PW 35/AB. lxiii) She denied to have informed the lady
police official that then at 2.15 am she called
from her cell phone No. 9810038469 to land
line Nos. 4717390 and 4714101 several times as
224
she was apprehending that accused persons may
not cause any harm to Nitish. lxiv) She further denied to have informed
the lady police official that accused Vikas and
Vishal were not happy with her dance with
Nitish and their being photographed together.
She was confronted with her statement Ex. PW
35/AB where these facts find mention.
lxv) She further denied that at 4 am she
rang Bharat Diwakar on his cell No. 9810154964
to enquire about Nitish as Bharat Diwakar had
accompanied Nitish from Delhi to marriage and
Bharat Diwakar called her twice around 6 am
on her mobile. She also denied that she had
informed the lady police official that PW 26
Gaurav Gupta had called her from mobile No.
9811220691 which belonged to PW Yash
Tomar and he informed her that Nitish was not
225
traceable. She further denied to have informed
the lady police official that on 17.2.02 at 7 am
Bharat Diwakar called her from his cell phone
and informed that there was no news about the
whereabouts of Nitish. She was confronted with
her previous statement Ex.PW 35/AB to this
effect., where all these facts are mentioned. lxvi) She was further confronted with her
statement Ex.PW 35/AB to the effect that she
had purchased a wrist watch Esprit from
Shopper Stop Ansal Plaze South Ex., New
Delhi, with her own money and gifted the same
to the deceased, where this fact is mentioned.
lxvii) She further denied that she had
told the lady police official that at about 7.20
am Smt Neelam Katara, mother of Nitish
Katara called her and informed that Nitish had
not reached home and again she had called her
226
at 8 am and asked her to give the telephone
No. of her father. lxviii) During her cross examination by
Spl PP for State the witness denied that
during the days of incident she had e mail
address [email protected] and she also
denied that she had ever any talk with Nitin,
the younger brother of Nitish on telephone
prior to or after the incident and that she was
not aware of the email address of Nitin. The
prosecution has claimed that Bharti Singh
had sent approximately five e mails to Nitin
during the period 19.02.02 to 24.02.02 relating
to the incident as she was apprehending that
she may not be able to call him on telephone.
She further denied to have informed the lady
police official that she had sent e mails from
time to time to Nitin, the brother of the Nitish
227
since Nitish was not traceable, to this effect she
was confronted with her statement Ex PW
35/AB where this fact finds mention. lxix) She also denied to have stated
to the lady police official that on 16.2.02 at
about 3pm Nitish had called her from his
mobile No. 9811283641 from her mobile No.
9810038469. She further denied to have
informed the lady police official that at about 2
am when she came to know that her brothers
Vishal and Vikas alongwith Sukhdev had taken
away Nitish she tried to contact Nitish on his
mobile phone but there was no response and
that increased her tension and thereafter she
called her residence phone Nos. 4713790 and
4714101. She also denied to have informed the
lady police official that fact of friendship with
Nitish was known to her aunti ie the wife of
228
Sh Bharat Yadav, her maternal uncle and also
to her Buaji whom she had already told that
she was in love with Nitish and they had
assured her that after the election of Vikas
Yadav they would put a proposal of her
marriage before her father. Again she was
confronted with her statement Ex.PW 35/AB
where these facts find mention. lxx) PW 38 Bharti Yadav had denied to
have made any statement to the police, though
she has admitted that she had conversation
with one lady police official. To the contrary,
the prosecution case is that her statement was
recorded on 2.3.02 at her residence by SI Anil
Somania accompanied by lady SI Anju
Bhadoria in the presence of her father Sh DP
Yadav. The statement has been exhibited
during the testimony of PW 35 SI Anil
229
Somania as Ex. PW 35/AB. Admittedly the
witness Ms Bharti Yadav is the real sister of
accused Vikas Yadav and cousin sister of
accused Vishal Yadav. In this context it is to
be seen whether her testimony inspires any
credence or she intentionally did not support
the prosecution case with regard to the fact
that she had given a detailed statement to the
IO, in order to save her brothers. It is
pertinent to note that during her cross
examination by Spl PP for State Sh BS Joon
on 29.11.06 advocate Sh, SC Bhutan, counsel
for PW Bharti produced a photo copy of
the complaint addressed to Director General of
Police, Police Headquarters bearing the
signatures of Bharti, received in PHQ Lucknow
UP on 25.3.02 wherein she claimed that on
2.3.02 she made a brief statement to Times of
230
India Newspaper Correspondent which was
printed under the title
BHARTI GIVES
BROTHER VIKAS A CLEAN CHIT''. As
mentioned in the application a copy of the
news clipping was enclosed alongwith the
application for record and ready reference,
(though no such clipping was filed on record
alongwith the photocopy of the application by
advocate Sh SC Bhutan, the counsel for PW
38 Bharti). She further mentioned in the
application that she had reiterated her views in
the Star News on the said evening. In this
application it is also mentioned: i) that on 2.3.02 she gave statement to the
police in which she had dispelled all doubts
about any alleged friendship with Nitish Katara,
ii) that the press and television were
maliciously propagating false rumours about
231
her and her family members,
iii) that she had stated to the police on 2.3.02
that her brother Vikas took out sometime to
meet her at the wedding party of her friend
and left at about 10.40 pm to 11 pm and did
not return thereafter, iv) that she had also informed the police that
Nitish Katara had left the wedding party about
1 and half hour later. In this application she
further claimed that police did not provide her
with a copy of her statement nor did they
read out her statement. Further that she was
assured of a copy, yet till date they have not
furnished her with the same. She requested in
the application for supply of a copy of her
statement dtd 2.3.02. It is further mentioned in
the application that in the event the police
interpolated her statement by introducing
232
anything contrary to the above she expected
appropriate action against them. During her
cross examination by Spl PP for State she
admitted that there was no date on the said
complaint Ex. PW 38/X1. She claimed that
the complaint was sent by her to the various
authorities but she again voluntarily stated that
it was sent by her through her uncle Mr
Bharat Singh, as such she was not aware if it
was sent through registered post or was
delivered by hand. It is pertinent to note that
on the front of the complaint it is mentioned
Ek Prati Prapat Ki, bearing the signature of
someone with date 25.3.02. However, it is
observed there is no stamp of any authority
receiving the complaint nor there is any
complaint number. lxxi) This witness stated that she did not
233
remember if any enquiry was made in respect
of the said complaint by SSP Ghaziabad or
DGP Lucknow. She also could not state if any
such authority had called her to appear in
person in this regard or she received any
response to the aforesaid complaint in writing
from any of the authorities . She claimed that
she do not remember any of these facts.
lxxii) It is strange to note that she was
aggrieved by the stand taken by the
Investigating Agency and the media reports
projecting her intimacy with the deceased in
terms of her statement dtd. 2.3.02 Ex. PW
35/AB but she did not remember as to what
happened after the application was moved. It
is not possible that she did not even
remember if she was called by any such
authority to appear before it in person as in
234
my opinion it is not a day to day affair for
a person like PW Bharti to appear before the
police and as such in my opinion she could
not have forgotten such an important fact that
too when it related to her personal life and
was also effecting her as well as accused
persons adversely. lxxiii) Her such conducts only shows that
she being the sister of the accused persons or
under family pressure to save her brothers was
making a statement contrary to the truth.
The aforesaid complaint was exhibited
during her cross examination as Ex. PW 38/X1.
The perusal of the aforesaid complaint clearly
establishes a fact that that Bharti had made a
statement to the police on 2.3.02 though in her
testimony before the Court she denied having
made any such statement. Ex.PW 38/X1 is the
235
document which the witness has herself produced
and as such the contents of the same cannot be
now denied by her. It is categorically mentioned
in this complaint that on 2.3.02 she gave
statement to the police and the police did not
provide her with a copy of her said statement.
lxxiv) Now it is to be seen from the
other circumstances of the case as to whether
witness Bharti Yadav made the statement
Ex.PW 35/AB to the police or some other
statement as claimed by her vide her complaint
Ex. PW 38/X1.
lxxv) It is pertinent to mention that this
is a type written complaint and is only
bearing the signatures of Bharti Yadav and
that there is nothing on record to suggest that
this complaint was actually delivered in the
office of Director General of Police, PHQ
236
Lucknow UP and to the other authorities to
whom the copy was sent. It is only her uncle
Bharat Singh who could say that this
application was delivered in the office of
Director General of police PHQ Lucknow(UP)
and other authorities.
lxxvi) The witness has also failed to
produce alongwith her complaint Ex. PW 38/X1
any such brief statement made by her to the
Times of India or in the Star News
on 2.3.02
in the evening. The double standard adopted
by the witness while she deposed before the
Court that she did not make any statement to
the police and then she produced an application
Ex. PW38/X1 before the Court that she had
moved Director General of Police Lucknow UP
for supply of the copy of the statement dtd
2.3.02 itself proves that the witness was
237
intentionally trying to mislead the Court. lxxvii) The witness during her cross
examination by Spl PP for State has admitted
that one lady police official had conversation
with her but she did not know whether it was
recorded in writing. At the same time in Ex.
PW 38/X1 she has claimed for supply of copy of
her statement dtd. 2.3.02 which itself shows
that her statement on that day was reduced
into writing. It is the claim of the prosecution
that on 2.3.02 the statement of PW 38
Bharti was recorded by SI Anil Somania in
the presence of lady SI Anju Bhadoria at her
residence where her father Sh DP Yadav was
also present. PW 38 Bharti has admitted the
presence of lady police officer, though she has
not given her name but it corroborates the case
of the prosecution that on 2.3.02 her statement
238
was recorded by the police. lxxviii) It is further important to note that
even assuming that Bharti had moved Director
General of Police Lucknow UP for supply of
copy and this application was received in PHQ
Lucknow on 25.3.02 there is no explanation
from the witness as to why there was so much
of delay in approaching the PHQ for supply of
the copy when she felt that whatever was
projected by the prosecution or the media was
never stated by her in her statement to the
police. There is also nothing on record that
this witness ever approached the IO of the case
for supply of a copy of any such statement or
to seek explanation as to why wrong facts were
being published but to the contrary she
straight away approached the Director General
of Police, UP. At the same time there is also
239
nothing on record that after this application
was moved on 25.3.02 , though there is no such
proof that this application was actually
received in PHQ Lucknow, any action was taken
on her said application or it was pursued either
by her or by her uncle Sh Bharat Singh. The
witness has very cleverly tried to explain in
her cross examination by Spl. PP for State that
in para 2 of the complaint Ex. PW 38/X1 it is
mentioned that she gave statement to the police
and by this she meant conversation with the
police. If it was mere a conversation then it
cannot be termed as a recorded statement as
the witness in her chief examination nowhere
stated that her statement was recorded by the
police. On one hand she has claimed that she
did not make any statement to the police and
on the other hand she claimed copy of the
240
same vide complaint Ex.PW 38/X1 to Director
General of Police PHQ Lucknow UP. Hence
her statement to the effect that she did not
make any such statement to the police is false.
It is important to note that her statement
Ex.PW38/AB contains the details of her
relationship with Nitish and her intention to
marry and her knowledge that accused persons
had taken away Nitish with them from
Diamond Palace as they did not like her dance
with Nitish, which is incriminating against her
brothers the accused persons and it is only for
this reason she must have been pressurised to
withdraw from her said statement. No doubt
there is no other evidence on record that she
danced with Nitish but at the same time this
fact cannot be ignored that video cassette of
the marriage Ex.PW42/1 is edited from place to
241
place and even accused persons are not
appearing anywhere in the cassette. This shows
the presence of accused persons in the marriage
and dance sequence were purposely edited from
the cassette. The voluntary statement made by
PW11 Shivani Gaur in the end of her testimony
that she had read about a dance in the
newspaper that was much thrown about but
there was no such dance and there was nothing
of that sort, also appears to have been made
intentionally to divert the attention of the court
from this sequence. In the present case, the
investigation of the IO to this effect seems
faulty as he ought have seized the complete
video reel and photo reels immediately on
17/2/02 itself after the FIR was lodged by PW30
Neelam Katara to conduct the matter fairly. It is
further important to note that Bharti is the real
242
sister of accused Vikas Yadav and Shivani is her
close friend, so her such statement indicates
that it was motivated either by pressure or due
to her close relation with the family of accused
persons. lxxix) It is seen that in this complaint
Ex PW 38/X1 she has nowhere mentioned that
she had no relationship with Nitish or was not
in deep love with him. Again to this effect
she stated that in her aforesaid complaint
Ex.PW 38/X1 para 2 she had mentioned that
in her statement to the police she had dispelled
all doubts. Her such statement again confirms
and corroborates the prosecution's claim that
her statement was recorded on 2.3.02. lxxx) Moreover during the cross examination
of this witness no suggestion was given either
by Sh SK Sharma, the counsel for accused
243
Vishal Yadav or by Sh. Mukesh Kalia, the then
counsel for accused Vikas Yadav that no such
statement of PW38 Bharti was recorded by
him on 2.3.02. Besides, the IO categorically
stated that the statement was recorded in the
presence of Sh DP Yadav but it is strange to
note that Mr DP Yadav was not produced in
the witness box by the accused persons to
disprove the statement of the IO to this effect.
lxxxi) I cannot loose sight of the fact that
PW 38 Bharti Yadav is the real sister of
accused Vikas Yadav and cousin sister of
accused Vishal Yadav and daughter of Sh DP
Yadav, a politician, the pressure upon her from
her family members to save her brothers by any
means was obvious. My such opinion is based
on the conduct of the witness subsequent to the
incident and during the court proceedings. It
244
is claimed by the prosecution that subsequent
to the incident the witness was sent to
Faridabad by her parents and this fact she did
not deny categorically during her cross
examination by Spl. PP for State which also
finds support from the testimony of PW 30
Neelam Katara who deposed in her chief
examination that while she was at the PS on
17.02.02 from 2.30 to 2.45 pm waiting for some
news of her son, she made a phone call to
Bharti Yadav from her cell and Bharti told her
that she was being taken to Faridabad at her
sister's house and nobody was telling her
anything and she should look for her son, such
time was crucial. In my opinion she was sent
away to Faridabad only for the reason to avoid
her interaction with the police. This also proves
that all her family members were aware of her
245
relationship with Nitish. If the relationship
between the two was not intimate and they
were only friends, there was no reason to send
her away from the house. lxxxii) It is also admitted fact that
thereafter she was sent to England (UK) on
the pretext of further studies. But record
speaks that she was sent there to keep her
away from the court proceedings. She was
summoned as a prosecution witness for
29.4.03 but her process was received with the
report that she had gone to England and her
mother had refused to disclose her address.
Hence, the Court intended to send summons
for presence of parents of Bharti Yadav for
disclosing her address but the counsel for the
accused stated that address of Bharti Yadav
will be informed to the Court by them. On the
246
next day ie 30.4.03 the address of Ms. Bharti
Yadav was furnished by the counsel for the
accused persons. Notice was ordered to be
issued to Bharti Yadav through High
Commission in London. lxxxiii) On 17.7.03 it is observed in the
order sheet that Ms Bharti Yadav failed to
appear despite issuance of summons by post as
well as through High Commission in UK and
she was also not produced in the Court by the
accused persons despite giving them specific
direction, she being the sister of one of the
accused. As such bailable warrants were issued
against her through Ministry of Home Affairs
for 29.8.03. On that day an application for
placing on record the fascimile message sent
by Ms Bharti Yadav was moved and the
same was kept on record. 247
lxxxiv) It is observed in the order sheet
dtd. 8.10.03 advocate Sh CK Sharma counsel
for the uncle of Bharti Yadav produced a
letter wherein the witness had stated that time
was too short and she should be given at least
two months to appear before the Court, as such
dasti process of the witness was ordered to be
given to advocate Sh CK Sharma for
appearance of Bharti Yadav for 15.11.03. lxxxv) On 15.11.03 advocate Sh CK
Sharma stated that Bharti was unable to attend
the Court and that she had requested that the
case should be fixed for the month of Jan and
an application was moved for recording her
evidence through Video Conferencing. The
application was dismissed on 23.12.03 and
direction was issued to the witness to appear
before the Court on 27.2.04 . 248
lxxxvi) On 27.2.04 advocate Sh CK
Sharma again informed the Court that Bharti
Singh was unable to appear before the Court
because she required permission from the
university for her absence from the university
for the duration of the evidence. It was
observed by my Ld. Predecessor in the order
sheet that the witness was delaying the case
unnecessarily on the one or the other pretext as
sufficient time was granted to her for her
appearance and the date was chosen by her
counsel. The matter was again adjourned for
appearance of Ms Bharti Yadav for 21.4.04 ,
the date chosen by Sh CK Sharma, appearing
for the witness. On that day it was made clear
that in case she would not appear on 21.4.04
NBW will be issued against her. lxxxvii) On 21.4.04 again Ms. Bharti Yadav
249
failed to appear before the Court and bailable
warrants as well as notice U/s 350 Cr PC
issued against her. On that day Sh. Bharat
Singh, maternal uncle of Ms Bharti Yadav was
also present before the Court and gave an
undertaking to produce her on 24.5.04 , hence
instead of warrants summons were ordered to
be issued to her through the Sec. Ministry of
External Affairs. lxxxviii) On 24.5.04 again the witness did
not appear and it was reported by Sh.
Ramesh Kumar US (Legal) Ministry of Home
Affair North Block New Delhi that the address
of Ms Bharti was found to be incorrect. Sh
Bharat Singh, maternal uncle of Ms Bharti
Yadav moved an application that Bharti Yadav
had received injures on her leg and back due
to fall. The application was supported by the
250
medical certificate issued by her Harley Street,
Health Care Clinic, London and it was sent
for verification. Sh Bharat Singh was directed
to furnish the correct address of hospital and of
the residence of Ms Bharti Yadav till 27.5.04. lxxxix) On 27.5.04 Mr Bharat Singh
furnished the communication address of Ms
Bharti Yadav and not her residential address.
He was directed to furnish her residential
address within 48 hours and he was also
directed to produce Ms Bharti Yadav on 21.7.04
under all probabilities.
xc) Sh Bharat Singh did not furnish the
address of Bharti Yadav within 48 hours as
directed by the Court vide order dtd. 27.5.04
and the address was furnished on 5.6.04.
On 21.7.04 Under Secretary to the
Govt. of India was present and had moved an
251
application that UK Home Office had regretted to
inform that they could not serve the summons
due to insufficient address and that they were
trying to locate her new address. On the same
day medical certificate was filed by advocate
Sh CK Sharma that Ms Bharti Yadav needed
six week more rest. As such the Court directed
her to appear on 27/9/04 and in case of failure
NBW were ordered to be issued for 27/10/04. On
27/9/04 the witness did not appear and an
application for stay of NBW was moved . On
7/10/04 Sh Bharat Singh,the uncle of Ms Bharti
Yadav furnished a bond before the Court for her
appearance and prayed for stay of warrants vide
application,which was dismissed on 25/10/04 and
it was ordered that NBW issued against her be
executed for 25/11/04. However, no report was
received on the warrants. Fresh warrants were
252
issued against her for 18/1/05 but the warrants
could not be executed for want of time. It is
also observed in the order dtd. 27/1/05 when the
PP Sh KK Singh informed the Court that he had
a talk with Ms Bharti Yadav and she told him
that she was not interested to come and depose
as a witness in the case, which clearly indicates
the intention of the witness to defy the order of
the Court.
xci)
Finally, on 30/3/05, the prosecution
dropped her as a witness, which order was
lateron set aside by the Hon'ble High Court of
Delhi vide order dtd. 03/10/05, wherein it was
observed that Ms Bharti Yadav is an essential
and important witness in the prosecution's case.
In view of the aforesaid order of the Hon'ble
High Court of Delhi, fresh NBW was issued
against Ms Bharti Yadav vide order dtd. 7/3/06
253
at her last known residential address 32
Swallow Cort, Carleton Gate, Admiral Walk
London, Post Code WTXUK
for 27/04/06 and
thereafter the time was extended till 11/5/06 for
execution of warrants as per the request from
Ministry of Home Affairs. On 11/5/06, the report
was received from the Ministry of Home Affairs
to the effect that as per the UK Central Authority
she was not residing at the address given above
and her last known address was 6 0,
Frederick Road, High Field, Leicester, LE5 , 3HE.''
Thereafter on 22/5/06, fresh NBW
were issued against the witness at both the
addresses, referred above, for 17/7/06, which was
again received back unexecuted .
Xcii)
In the meantime efforts were made
by the Court to trace out the present
whereabouts of the witness with the assistance of
254
her father Sh DP Yadav but he failed to assist the
Court in any manner. There is ample material on
record against the witness that though she was
aware of the proceedings pending before this
Court where her presence was required as a
witness but she avoided appearance in the Court
on one or the other pretext and finally was not
even traceable at her last known addresses,
leaving no option with the prosecution except to
move the application u/s 82 Cr.PC. The efforts of
the witness to halt the proceedings or to further
delay the proceeding did not come to an end as
even when the application u/s 82 Cr. PC was
pending for orders, on 22/7/06 a FAX was
received from the witness Ms Bharti Yadav for
her examination through Video conferencing or
on commission which she was already aware that
her plea had been rejected by the trial Court and
255
thereafter by the Hon ble High Court of Delhi. It
was another effort on the part of the witness to
delay the proceedings. xciii) The record speaks that the Court
had always given assurance to the prosecution
as well as to the accused Vikas Yadav who is
the brother of Ms Bharti Yadav that there will
be no harassment to the witness at the hands
of the media or otherwise and all arrangements
for her safety and security would be made but
despite all the efforts of the Court she chose
to stay away and delayed the proceedings
substantially. Finally, the proclamation U/s
82 Cr PC be issued against her , which was
challenged before the Hon'ble High Court by
the witness , however with the due indulgence
of the Hon'ble High Court the witness agreed
to appear before the Court and her statement
256
was recorded on 29.11.2006 and 30.11.2006.
xciv) The court record speaks itself that
there were frequent adjournments on the part
of Ms Bharti Yadav on frivolous ground.
Even the correct address of Ms Bharti Yadav
was not furnished on record and at one time
she spoke to earlier Spl. PP for State Sh. KK
Singh and told him she was not interested to
come to Court, which shows that either she had
no sanctity for law, no respect for judicial
system or was under the influence of her
family, the chances of latter are more since
she is the real sister of accused Vikas
Yadav and they would never like to depose
against them in support of the prosecution.
The witness being the sister of the accused
persons was under the influence of the family
which is apparent from the record as the
257
incorrect address of the witness was furnished
on record by her family only so as to avoid
her service and consequential appearance before
the Court.
xcv) I also find from the record there
was reluctance on the part of Sh Bharat Singh,
the maternal uncle of Ms Bharti Yadav in
furnishing the correct residential address of the
Ms Bharti Yadav and instead he produced on
record her communication address, which itself
shows that they never wanted that the court
should have direct access to the witness.
Though she sent a fascimile message to the
Court through her material uncle and lateron a
FAX reflecting her intention to appear as a
witness before the Court , however, her conduct
shows that these fascimile message and FAX
were sent to the Court to avoid any harsh
258
action against her. xcvi) The entire court record shows
that Ms Bharti Yadav was prevented from
appearance before the Court which not only
resulted in delay of the proceedings but also
caused lots of unpleasantness in the court
proceedings and delayed justice.
xcvii) Such conduct of the witness
also has bearing upon her testimony in the
Court where she denied recording of her
statement Ex. PW 35/AB by the police but
her own complaint Ex. PW 38/X1 proved it on
record that she had made statement such to the
police on 2.3.02. This shows that the witness
was under pressure and after she had made
the statement favourable to the prosecution
before the police on 2.3.02, she was forced to
retract from the statement under family
259
pressure and out of the blue the application
Ex.PW 38/X1 was produced on the record by
Sh. SC Bhutan, her counsel during her cross
examination by Spl PP for State. It is important
to note that this application was not brought
to the notice of SI Anil Somania PW 35
during his cross examination by either of the
defence counsel nor he was suggested that he
had not recorded any statement of Ms Bharti
Yadav on 2.3.02. The statement Ex. PW 35/AB
of Ms Bharti Yadav recorded by the police on
2.3.02 clearly shows that there was love affair
between the two and they intended to marry
and this fact was also known to her Mami and
Bua. Even assuming it otherwise that Bharti
Yadav did not make any such statement before
the police, there is ample evidence on record to
prove the relationship between Bharti Yadav
260
and deceased Nitish Katara. Ms. Bharti
Yadav herself has admitted writing of letters
and greeting cards Ex.PW 30/1 and 2 and Ex.
PW 30/C5 to C 15, Ex.PW30/ C 18 to C 73,
Ex.PW 30/ C 75 to C78 and Ex.PW 30/ C 83.
These documents are self explanatory that the
relationship between the two was not mere
friendship but had blossomed into love affair
and they intended to marry. These documents
also corroborate the statement of PW 30 Mrs
Neelam Katara, the mother of Nitish Katara
( deceased) that both Ms. Bharti Yadav and
Nitish Katara had love affair and wanted to
marry each other. The letters particularly
Ex. PW 30/C1 and Ex.PW30/C 4 and the
greeting cards particularly the valentine album
Ex. PW 30/C 79 speaks of their intimate
relationship. It was only for Ms Bharti Yadav
261
to explain as to why she wrote such type of
letter Ex. PW 30/C4 that too at 2.30/3 am from
Shimla if it was not a love affair between the
two. However, no answer has come from her
to this effect. Her plight is understandable as
on one hand it was her past who was no more
alive and on the other hand there were her
two brothers behind the bar. She must be
under tremendous pressure from her family to
save her brothers by any means and thus
tried to make very balanced statement before
the Court by denying her intimate relationship
with the deceased on one hand and by
admitting her writings to the deceased
reflecting their relationship on the other hand.
The pressure upon the witness is apparent
from the Court record as after the incident she
was sent to Faridabad, which fact she did not
262
deny during her cross examination
categorically. Besides, when Mrs. Neelam
Katara visited her house she told the mother
of Bharti Yadav that Bharti Yadav was being
sent to Faridabad and on this she was startled
that Mrs. Neelam Katara was having this
information and then she told her that Bharti
Yadav was not feeling easy: Lag Raha Tha.
Mann Nahi
So they were sending Bharti
Yadav to Faridabad to her sister's house. No
suggestion to the contrary was given by the
defence in her cross examination.
It is also
on record that thereafter she was sent to UK
on the pretext of further studies. Her conduct
that earlier she made a statement before the
police on 2.3.02 but lateron she retracted the
same before media and moved an application
Ex PW 38/X1 to Director General of Police UP
263
seeking copy of her statement dtd. 2.3.02 to say
that her statement was interpolated by the
police only speaks volumes of pressure upon
her. However, at the same time I feel that by
her such conduct she did not do justice to the
soul of the deceased without whom she had
claimed she could not survive.
xcviii) Photographs Ex PW 11/1 to 4 in which
Bharti is appearing alongwith Nitish Katara
( deceased) are also admitted by her. She
could not admit or deny that photographs
Ex.PW 11/2 and Ex. PW 11/4 were clicked in
Fatehpuri Sikri and photograph Ex PW 11/1
was clicked at Jim Corbret Park. She testified
that she do not remember if these photographs
were clicked in Fatehpur Sikri or Jim Corbret
park. She did not deny that she never visited
Fatehpuri Sikri or Jim Corbret Park alongwith
264
the deceased but simply stated that she did
not remember if these were

Nitish Katara-Trial Court Judgment

Transcription

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