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INTHECOURTOFMSRAVINDERKAUR,ASJ, NEWDELHI SCNo.78/02 STATE VS 1VIKASYADAV S/oSh.DPYadav R/oR4/16,RajNagar Ghaziabad(UP). 2VISHALYADAV S/oLateShKamalRaj R/oR5/45,RajNagar Ghaziabad(UP). FIRNo.192/02 PSKaviNagar, U/s364/302/201/34IPC JUDGMENT 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 NagarGhaziabad,UPhavebeensent up for

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trialU/s364/302/201/34IPC. 2. Thefactsassetoutinthechargesheet andemergingfromtherecordanddocuments areasfollows: i) Theprosecutioncaseisthaton17.2.02

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 complainttotheeffectthaton16.02.02herson NitishKatara(nowdeceased)hadattendedthe marriageofShivanid/oLateSh.BKGaurr/o 58 Model Town, West Ghaziabad and Nitish tookmealsalongwithhisfriendsDiwakarand Gaurav Gupta. It is further mentioned in the complaint that Bharat Diwakar informed that whiletheyweretakingmeals,Vishals/oLate Sh.KamalRajYadavcametothemandRohit

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s/o Sh BK Gaur told that Vikas s/o Sh DP YadavandVishals/oLateShKamalRajYadav 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 DiwakarcouldnotseeNitishsohecameback totheirhouse.Sheexpressedinhercomplaint thatshesuspectedhappeningofsomeuntoward incident. ii) Itisfurthermentionedinthecomplaint thathersonNitishandBhartiYadavd/oShD PYadavstudied togetherinIMTintheyear 19982000andtheywerefriends butVishal and Vikas did not like their friendship. She requested the police authority to record her complaintandtotakenecessaryaction. iii) Onthebasisoftheaforesaidcomplaint

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case FIR No.83Ex.PW1/2caseNo.192/02 U/s. 364 IPC was registered by PW1 HC Netarpal Singh. The investigation was handed overtoPW35SIAnilSomaniaPSKaviNagar. Hestartedtheinvestigationwiththerecording ofthestatementofHCNetarpalSinghU/s.161 Cr.PC.ThereafterthedetailedstatementU/s161 CrPC of the complainant Smt. Neelam Katara was recorded, whereby she stated that on 16.02.02 her son Nitish Katara (now deceased) andhisfriendBharatDiwakarleftthehouseat 9pmforattendingthemarriageofShivaniGaur at DiamondPlaceGhaizabad. When Nitish didnotreturnhome,BharatDiwakartoldher thatat12/12.30midnightNitishwhiletalking toVishalsonofLateShKamalRajYadavhad goneoutoftheDiamondPalaceandRohitson ofShBKGaurR/o.58,ModelTownWest

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GhaziabadhadalsotoldhimthatVikass/oSh DPYadavand Vishal sonofLateShKamal RajYadavhadarrivedatDiamondPalaceat12/ 12.30midnightandwhiletalkingtoNitishhad taken him outside. She further stated that deceasedhadfriendshipwithBhartiYadavd/o DPYadavR/oRajnagarsincetheybothstudied 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 perhapsthiswasnotlikedbyVishalandVikas. Forthisreasonsheapprehendedthehappening ofsomeuntowardincidentwithhersonNitish Katara by accused Vishal and Vikas. She furtherdisclosedthathersonwaswearingred colouredkurta,white churidaarpajamaand ashawlandEspritwatchinhishand.Aposter bearingthephotographofthedeceasedNitish

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Katara Ex.PW 1/DA under the title Talash Apharit (search for abducted person) was issued. Thereafter the statement of Bharat DiwakarsonofShRKDiwakarr/oC24Shivaji NagarPSHabibganjBhopal(MP)wasrecorded U/s 161CrPCwhostatedthathehadtaken admissioninIMTGhaziabadforMBAcoursein theyear1998andNitishKatara,GauravGupta, Bhartid/oShDPYadavwerealsostudyingin IMTalongwithhim,whereasShivaniGaurwas doing Executive MBA course from IMT and theywereallfriendsandwereonvisitingterms witheachotherandtheyalsousedtoattend functions at each other's place. Their course ended in the year 2000 and thereafter he started working as Manager MICOWOSH at Ahmedabadbutstilltheyusedtotalktoeach other on telephone. He stated that the

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marriage of Shivani Gaur was fixed for 16.02.202. To attend the marriage he had reachedDelhiinthemorningof 15/02/02by train and went to the house of Nitish. On 15.02.02intheeveningtheladiessangeetwas organisedatthehouseofShivaniGaurwhich wasattendedbyhim alongwithNitishather residence at Ghaziabad. Besides, their friend BhartiYadav,hersisterBhawnaYadavandtheir cousin brother Rakesh @ Rocky were also present there and all of them had danced in theladiessangeet. Itisstatedthaton16.2.02 theyhadreachedDiamondPalaceGhaizabad atabout 10.15pmtoattendthemarriage of Shivani Gaur.After meeting ShivaniGaur and herfamilymembershealongwiththedeceased and Gaurav Gupta reached the garden for meals and while they were taking meals at

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about 12midnightonetallandfair person came there and told the deceased ''Maine Aapko Kahin Dekha Hain, Aapka Naam Kya

Hain''.Atthisdeceased disclosedhisnameto thesaidpersonandtheybothstartedtalkingto each other at some distance from Bharat DiwakarandGauravandwhilesotalkingthat tallandfairpersontookthedeceasedoutside the Diamond Palace. Bharat Diwakar and Gauravwaitedforhim buthedidnotreturn andduring thisperiodheenquiredaboutthe tall and fair person and was told by the persons that he was Vishal Yadav r/o Raj Nagar.Thereafterhetriedtocontactdeceased onhismobileNo. 9811283641buthismobile wasfoundswitchedoff,assuchhecouldnot contact him. At about 2 am Gaurav Gupta went back. Bharat Diwakar waited for the

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deceasedtill2.30amattheDiamond Palace and thereafter he returned to the house of deceasedatDelhiinthetaxiandwenttosleep. Till5amwhenNitishdidnotreturnhome,his motherSmtNeelamKatarawasworried.Then she asked BharatDiwakar about the deceased andhetoldherthatNitishhadstayedbackat Ghaziabadatnight.On17.02.02BharatDiwakar wenttoGhaizabadandmadeenquiriesfromPS Kavi Nagar about Nitish but did not get any information. Itisstatedthatthereafter Smt Neelam Katara also went to PS Kavi Nagar Ghaziabad and lodged the FIR regarding missingofherson.Thiswitnessalsostatedto thepolicethatonthatdayNitishwaswearing redcolouredkurta,whitechuridaarpajamaand hadwrappedawhiteshawl.Afterrecordingof the statement of this witness the site ie

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Diamond Palace was inspectedby theSI Anil Somania at the instance of Bharat Diwakar andasiteplanEx.PW35/1ofDiamondPalace was also prepared. IO also recorded the statementsof Sandeep Goyal, the owner of DiamondPalaceU/s161CrPCofJaiPrakash Pandey, thesecurity guard attheDiamond Palaceonthenightoftheincidentwhostated thathisdutywasatthemaingateofDiamond Palace on 16.02.02 as a marriage was being celebratedthere. Atabout12/12.30midnight hesaw3/4boyswhocameoutofthehalland sat in a long car and one of them was wearing redcolouredkurta,churidaarpajama andwhiteshawl.Healsostatedthatthoseboys shaked hands with some boys who were standingoutsideandthereaftertheywentaway inthelongcar atafastspeedtowardsWest

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direction but this witness could not tell the number and colour of the vehicle in which those boys had gone and he explained that sinceitwasamarriagefunctionandtherewere several vehicles so he did not pay much attention to the colour and number of the vehicle. iv) Onthesameday thehousesofboth

theaccusedVishalYadavandVikasYadavwere raided but neither the accused persons nor Nitishcouldbetracedout.Besides, theywere searchedatotherplacesalsobythepolicebut metwithnosuccess. v) Thereafter again on 18.02.02 search

wasconducted for Nitish as well as boththe accused persons and in the process the IO reachedtheofficialresidenceofShDPYadav at 15 Balwant Rai Lane New Delhi (since he

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was MP during the relevant period) where KamalKishore,thesecurity guardofSh. DP Yadav met him and was brought to PS Tilak Marg where he was interrogated and memo interrogation was prepared. Besides his statementU/s161CrPCwasalsorecorded to the effect that on intervening night of 16/170202atabout 1/1.30amaccusedVikas and driver Anil alongwithone another person of fair complexion, clean shave wearing red coloured long kurta, churidaar pajama and whitecolouredshawlcamethereinalongcar withhighbackandtheystayedthereforhalf 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 vehiclewasdrivenawaybyVikas,whereasthe

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personinredkurtasatnexttohiminfront. vi) During the course of investigation

statement of Bharti Yadav U/s 161 Cr. PC was recorded which revealed that of Ms BhartiYadavwasastudentofIMTGhaziabad 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 deceasedconvertedintoalove affair. Even after completion of their course in the year 2000 from IMT they both remained in touch witheachother,usedtoroamaroundtogether andgotthemselvesphotographed,exchanged gifts and Ms. Bharti Yadav had gifted Esprit wrist watch to the deceased in Dec 2001. Theyboth wanted to marry each other. The

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deceasedhadalreadyspokentohismotherfor theirmarriage,whereastheiraffairwasknown totheMamiandBuaofMsBhartiYadavand shewas toldbythemthattheywouldspeak toSh DPYadavforhermarriagewithNitish onlyaftertheelectionsofVikas.Itisfurther mentionedinherstatementU/s161Cr.PCthat on 16/2/02 the marriage of Shivani was fixed where she alongwith her family, Bharat Diwakar,NitishKatara,GauravGuptaandYash Tomarwereinvitedtoattendthemarriage.A daypriortothemarriage,'mahilasangeet'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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BhawnaYadav,hermother,herbrotheraccused VikasYadav,herbua'ssonaccusedVishalYadav and Sukhdev Pehalwan resident of Dewaria, workingintheirliquorofficeatBulandshahar. The marriage was also attended by Bharat Diwakar,NitishKatara,YashTomarandGaurav Gupta.ShegotclickedphotographswithBharat Diwakar, Nitish Katara and Gaurav Gupta on thestageandhadalsodancedinthemarriage withNitishKatara.At1:30amshecametoknow that Nitish was called away by the accused persons and their coaccused Sukhdev, so she became upset. She searched for them in the DiamondPalacebutcouldnottracethem.Itis furthermentionedinherstatementthataccused personshadcomethereinTataSafari.Atabout 2:15am she called from her mobile No. 9810038469tothelandlineNosinstalledather

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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 gettingthephotographsclickedwithhim. vii) Italsorevealedduringinvestigationthat

on16.02.02themarriageof ShivaniGaurwas attended by both the accused persons namely VishalYadavandVikas Yadavalongwiththeir co accused Sukhdev Pehalwan r/o Dewaria, anemployeeofShDPYadavintheofficeof liquoratBulandshahar. Besides,themarriage was attended by Ms Bharti Yadav, her sister BhawnaYadavandtheirmotherSmt Umlesh Yadav. The marriage was videographed and photographed. The marriage function was attendedby600to700persons. viii) It further revealed during investigation

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thatboththeaccusedVikasandVishalYadav and their co accused Sukhdev Yadav took deceasedinaTataSafarifromDiamondPalace towards Hapur chungiandtheirvehiclewas stoppedbypoliceofficialsnamelyCtSatender PalSinghandCt.InderjeetSinghnearDiamond Palace for a routine checking. At that time accused Vikas Yadav was driving the said vehicle,Nitishwassittingbesideshimonfront seat,whereasaccusedVishalYadavwassitting behindthedeceasedin the rear seatandco accused Sukhdev was sitting behind accused VikasYadavontherearseat. ix) Duringinvestigationitfurtherrevealed

thatonthatdayaround12.30midnightafter some distance near crossing of Hapur Chungi Nitishwasspottedinthecompanyofaccused VikasYadav,VishalYadavandtheircoaccused

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SukhdevYadavtravellinginTataSafaribearing registration No. PB 07H 0085 when accused VikasYadavhadanaltercationwithPW33Ajay Katarawhosescooterbrokedownontheroad andhewasaskedtoremovethescooterfrom theroadimmediately.Asperthestatementof 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 PehalwanwasanemployeeofShDPYadav. 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

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jurisdictionofPSKotwalianditwasspottedby PW23VirenderSinghwhogaveinformationin this regard to the PS Khurja which was recordedvideGDNo.12Ex.PW4/A.Onthis informationPW4InsptCPSinghofPSKhurja reached the place where deadbody was lying. ThephotographsEx.PW4/2andEx.PW4/3of the deadbody were taken. Panchnama Ex.PW 3/2A was prepared and lateron the siteplan Ex.PW4/4oftheplacewasalsoprepared. It wasfoundthatlefthand,fingersandpalmof thedeadbodywerenotburnt. xi) The deadbody was removed to the

mortuaryoftheDistrictHospitalBulandshahar insealedconditionthroughPW5CtMudasar Ali and Ct Mahender Singh for postmortem. Effortsweremadefortheidentificationofthe deadbody.

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xii)

Thepostmortemwasconductedon

the deadbody of unknown person by Dr Anil Singleat DistrictHospital Bulandshahar UP on 18.2.02 and the deadbody was kept in the mortuaryatBulandshaharforidentification.As perthepostmortemreportthecauseofdeath washeadinjury.Thepostmortemreportis Ex.PW3/3. xiii) On the basis of the aforesaid

postmortemreportcaseFIRNo.216/02U/s 302 /201 IPC was registered with PS Khurja Nagaron19/02/02.Onthesamedayafter coming to know about the recovery of the deadbodyofanunknownpersonbythepolice of PS Khurja Nagar SI Anil Somania reached thereintheeveningbutcouldnotmeetInspt CBSinghashewasnotavailableatthattime. On 21.2.02 the complainant alongwith her

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younger son Nitin and other family members reachedmortuaryBulandshaharonreceiptof information from PS Kavi Nagar that a deadbodyofanunknownpersonsimilartothe description of her son was recovered from Shikarpur Road in a burnt condition. From the hands and feet and the structure of the deadbodysheidentifiedthesametobeofher sonNitishbutsincetheotherfamilymembers werenotfullysatisfied,assuchtobeverysure she asked for DNA test and finger prints examination. xiv) SIAnil Somaniamovedanapplication

onthesamedaybeforeCJMBulandshaharfor seeking possession of the deadbody and transferring the deadbody to AIIMS hospital for the purpose of finger print and DNA as therewasnofacilitytopreservethedeadbody.

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The application was allowed by CJM Bulandshahar UP and on the same day ie 21.2.02thebodywasremovedtoAIIMShospital, NewDelhiandwaskeptinfreezerNo.8.On 22.2.02inthepresenceoftheIOfingerprints expert ofDelhi Police namely Chet Ram took finger prints of the left hand of the deadbodyinAIIMShospital.Onthesameday ChetRamalsoobtainedstandardfingerprints ofthedeceasedNitishKatarafromRTOOffice atSaraiKaleKhanNewDelhi,fromwherea driving licence was issued to the deceased Nitish Katara. On the same day ie 22.2.02 blood samples of Sh NishitKatara and the complainant Neelam Katara ie parents of NitishKataraweretakenfor DNA test, in complianceoftheorderofCJMBulandshahar (UP).Onthesamedaysampletissuesfrom

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the deadbody for the purpose of DNA test weretakenandallthesamplesweresentto CFSLCalcuttaforanalysison25.2.02through SIRCMakholia. xv) Asperthereportofthe fingerprints

experts dtd 25.2.02, PW 2 SI Chet Ram (FingerPrintExpert)withFingerPrintBureau recordedthelefthandfingerimpressionsof thesaidUnidentifieddeadbodyon22.02.02. As per the result of comparison recorded left index finger impressions of the said unidentified deadbody were compared withthespecimenleftindexfingerimpressionof Sh NitishKatara s/oSh Nisheeth MKatara r/o 7 Chemsford Road New Delhi 110055 (LicenceNo. P06022000120296) available with Deptt of Transport Govt. of NCT, Delhi and werefoundidentical.

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Onthebasisofthefingerprintsexpert reportSection302/201/34IPCwereaddedto theFIRon25.2.02,astheidentityofthebody was established beyond any reasonable doubts, On 26.2.02 an information was sent to CJM Ghaziabad(UP)abouttheadditionoftheoffences U/s. 302/201/34 IPCinFIRbearingNo.192/02 ofPSKaviNagar. xvi) On22.2.02letterExPW8/Awassent

by Sh AKRaghavSPCityGhaziabad tothe directorof AIIMSrequesting for DNA finger printing of suspected deadbody of deceased NitishKataraintermsoftheorderofthe CJM Bulandshahardtd.21.2.02Ex.PW8/C.Thisletter wasmarkedtoPW8TDDogravideendorsement Ex. PW 8/B by the director AIIMS. Thereafter underthesupervisionofPW8DR.TDDogra ofAIIMShospitalbloodsampleofShNMKatara

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andSmtNeelamKatarawerecollectedbyPW10 DrSanjeevLalwani. Fromtheunknowndeadbodysuspected tobeofNitishKatarasonofShNMKatarathe following samples were collected from the deadbody: a Entire right femur bone ( Weight

Aprox.900gm). b Piece of Right Calf muscle (Weight

80gmApprox.) c Piece of Right Lung (Weight 20gm Approx.) d Piecesofkidneyofbothsides(Weight

15gmeachApprox,) e Approx.) f Approx.) Piece of livertissue (Weight25gm PieceofHeart muscle(Weight20gm

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g Approx.) h

Pieces of spleen ( Weight 25gm

Blood sample of gauze piece from

rightsideoftheheart. On 25.2.02thebloodsamples of Sh NM Katara and Smt Neelam Katara alongwith the sample collected from the unidentified deadbody weresentto theofficeofCentral Forensic Science Laboratory, Bureau of Police Research&Development,MinistryofGovernment HomeAffair,GovernmentofIndia,Calcuttain one sealed thermocol box, three sealed paper packetsandonesealedclothpacketwhichwere sealed with the corresponding seal impression through SI RC Makholia. The three sealed paper packets were marked A,B and C in the Laboratoryandcontained ExhibitA,Exhibit B andExhibitCrespectively.Thesealedthermocol

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box contained Exhibit E, Exhibit F, Exhibit G, ExhibitH,ExhibitIandExhibitJ. descriptionoftheexhibitsisasfollows: ExhibitA:BloodStainI A white gauze piece having large reddish brown stains, saidtobebloodsampleofMr NMKatara(BlooddonorcardannexureI). ExhibitB:BloodStainII A white gauze piece having large reddish brown stains, saidtobebloodsampleofMrs NeelamKatara(BlooddonorcardannexureII). ExhibitC:BloodStainIII A white gauze piece having large reddish brownstains,saidtobebloodsampleofbody (Cl.For.Med.No.14/2002) ExhibitD:LongBone Ahumanfemurboneofrightside,saidtobeof body.(Cl.For.Med.No.14/2002). The

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ExhibitE:TissueSamplel Abrown colouredtissue, saidtobepieceof muscleofbody(Cl.For,Med.No.14/2002) ExhibitF:TissueSampleIl Aredcolouredtissue,saidtobepieceoflung ofbody(Cl.For,Med.No.14/2002) ExhibitG:TissueSampleIil Abrown colouredtissue, saidtobepieceof kidneyofbody(Cl.For,Med.No.14/2002) ExhibitH:TissueSamplelV A reddish brown coloured tissue, said to be piece of heart of body( Cl. For, Med. No. 14/2002) ExhibitI:TissueSampleV Abrown colouredtissue, saidtobepieceof liver ofbody(Cl.For,Med.No.14/2002) ExhibitJ:TissueSampleVl

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A red coloured tissue, said to be piece of spleenofbody(Cl.For,Med.No.14/2002) Exhibit C:Blood Stain III, Exhibit F: Tissue Sample IIandExhibit J:Tissue Sample VI wereselectedforDNAProfilingExhibitD:Long Bone, Exhibit E: Tisue Sample I, Exhibit G: TissueSampleIII,ExhibitH:TissueSampleIV and Exhibit I: Tissue Sample V were not analysed as they originated from the same source.) RESULTSOFTHEEXAMINATION Small portions of Exhibit A: Blood Stain I, ExhibitB: Blood Stain II, ExhibitC: Blood Stain III, Exhibit F: Tissue SampleIIand ExhibitJ TissueSampleVIweresubjectedfor

DNA isolation by organic extraction method, High Molecular Weight DNA could be isolated fromExhibitsA,B&CwhiledegradedDNAwas

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recoveredfromExhibitsF&J. DNA fromtheabovementionedexhibits was subjectedtomultiplexPCRreactionforfifteen STR loci & amelogenin using commercially availablePowerPlexd16kit.Allellesofallloci in the Exhibits amplified successfully. The amplified productsalongwithcontrolswererun onAutomatedDNASequencerandanalysis was carried out using GeneScan, Genotyper and PowerTyper16Macrosoftwareswithrespectto standardladder.Theresultantalleledistribution forthestudiedlociinthedifferent exhibitsis showninTable:Locus.M Control Internal Exhibit Exhibit ExhibitC: arker 9947A Control A: B:Blood Blood (AKS) Blood Stain II Stain III StainI (said to (said to be of bebody) (saidto Mrs. be of Neelam MrNM Katara) Katara) Exhibit Exhibit F: J: Tissue Sample II(said tobe of body) Tissue Sample VI (said tobeof body)

D3S13 14,15 58 THOI 8,9,3

14,16 6,9,3

15,16 16 6 7,9,3 6,7 16 6,7 16 6,7 16

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D3S13 14,15 58 D2lS1 1 D18S 15,19 51 Penta 12,13 E DSS8 18 D13S3 17 D7S8 10,11 20 D16S 11,12 539 CSFI 10,12 PO Penta D D8S11 79 TPOX FGA 23,24 Amel xx ogeni n 12 11

14,16

15,16 16 16 16 16 29,30.2 29,31.2 29,30.2 29, 30.2 16,17 17 7,16 10,11 11 11 8,11 11 10,11 12 10,11 11 10,11 10,11 16,17 13,16 8,10 21.2,24 xy xx 11,13 9,11 17,19 13,15 9,11 13,15 9,10 22 22,24 xy 11,12 10,11 10,13 10,11 17 13,15 9,10 22,24 xy 8,11 11,12 10,11 10,13 10,11 17 13,15 9,10 22,24 xy 11 8,11 11,12 10,11 10,13 10,11 17 11 8,11 11,18 7,18 7,18 17 7,18 17

28,32.2 30.2, 30 33.2 14,17 14 7,13 12,14 8,12 11 8,9 9,11 11,12 12,13 14,17 10,17 13 8 8,9 20,23 xy

VWA 17,18

Fromtheaboveresults,itisobservedthat: a. the genetic profiles of Exhibit C:

BloodStainIII,ExhibitF:TissueSampleIIand ExhibitJ: TissueSampleVI areidenticaland

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belongtoamaleindividual. b. one of the allele of the studied

amplifiedlociofbody(ExhibitC:BloodStain III, ExhibitF:TissueSample IIandExhibitJ: Tissue Sample VI ) matches with one of the alleleofExhibitB:BloodStainII(saidtobeof Mrs.NeelamKatara) c. thenonmaternalallelesofthestudied

amplifiedlociofbody(ExhibitC:BloodStain III, Exhibit F: Tissue Sample II and Exhibit J: TissueSampleVI)arematchingwithoneofthe alleleofExhibitA:BloodStainI(saidtobeof Mr.NMKatara) d. thelikelihoodofMrs.NeelamKatara

(sourceofExhibitB:BloodStainII),thanany otherperson atrandom, contributingmaternal allelesofthestudiedlocitothebody(sourceof Exhibit C: Blood Stain III, Exhibit F: Tissue

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SampleIIandExhibitJ:TissueSampleVI)is 99,999approx. e. the likelihood of Mr. N.M Katara

(sourceofExhibitA:BloodStainI),thanany other person at random, contributing non maternalallelesofthestudiedlocitothebody (sourceofExhibitC:BloodStainIII,ExhibitF: TissueSample IIandExhibitJ: TissueSample VI)is99,999approx. From the above observations, it is concludedthat: thebody(sourceofExhibitC: Blood Stain III, Exhibit F: Tissue Sample II and ExhibitJ:TissueSampleVIforwardedvideCl. For.Med. No. 14/2002)belongs to biological son ofMrs. Neelam Katara(sourceofExhibit B:BloodStainII)andMr.NMKatara(source ofExhibitA:BloodStainI).

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On6.3.2002DNAreportwasreceived fromCFSLCalcuttathroughSIRCMakholia which established the identity further that the sampletissuesofthedeadbodywerebelonging tobiologicalsonofMrs.NeelamKataraand herhusbandMrNishitKatara. xvii) Since during investigation the

accusedpersons were named in the FIR dtd. 17.2.02ofPSKaviNagar,Ghaziabad,sotheraids were conducted by the police in their search regularly,attheirknownandgivenaddressesat differentplacesbuttheywerenottraceableand theywereabscondingfromthenightofincident itself. On 20.2.02 CJM Ghaziabad (UP) on the reportofthepoliceissuedprocessU/s.82Cr.PC againstaccusedVikasYadavandVishalYadav. xviii) On23.2.02itwasreportedintheTV

andthemediathat boththe accusedVikas

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Yadav and Vishal Yadav, were arrested by policeofPSDabra(MP) underArmsAct,on thatdayatabout4.15am.Boththeaccused persons disclosedbefore Dabra police that theywereinvolvedintheabductionofNitish Katara. Initially they triedtoconcealtheir identitybygivingfalsenamestoDabrapolice. Separate cases were registered at PS Dabra (MP) againstboththeaccusedpersonsunder ArmsAct. xix) Aftercomingtoknowaboutthearrest

oftheaccusedpersonsatDabra(MP),SIAnil Somania, IO of this case alongwith other membersofpolicepartyreachedDabra(MP)at 11pmon23.2.02fortakingthecustodyofthe accusedpersons.On24.2.02CourtatDabra grantedtwodaystransitremandoftheaccused persons for producing the accused persons

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before the Court at Ghaziabad. At about 3.30pmcustodyofboththeaccusedpersonswas takenbySIAnilSomaniaonthatdayafter theirmedicalexamination. xx) On 25.02.02 policeparty alongwith

theaccusedpersonsreachedatGhaziabadat about5amandproducedboththeaccused personsbeforeCJMGhaziabad(UP).Accused personswereremandedtojudicialcustodyon thatday. On thesameday ie 25.02.02 SI Anil Somania moved an application before CJM Ghaziabad(UP)forpermissiontorecord thestatementoftheaccusedpersonsinthejail as in State of UP, accused cannot be interrogated / examined, without the permissionoftheCourt. xxi) On 25.02.2002 SI Anil Somania

recorded the statement of both the accused

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persons separately in jail. Both the accused personsdisclosed thatloveaffairwas going onbetweenMs.BhartiYadavandthedeceased foralongtimeandwiththepassageoftime itcametotheknowledgeofthesocietyand theywerefeelinghumiliationandthiswasnot acceptabletothem.Assuchwhentheysaw NitishKatarainthemarriagetheybothie accused Vikas Yadav and Vishal Yadav thoughtthatitwasthebestopportunitywhich theymaynotgetinfuture.Thentheyhad dinner immediately afterthearrival ofthe barat.NitishKatarawashavingfoodalongwith hisfriendsandthen Vishal Yadav wassent bytheaccused VikasYadav tobringNitish Katara outside. Afterhewasbroughtoutside byaccusedVishalthentheymadehimsiton thefrontseatoftheirSafaricaratabout12

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am. Accused Vikas drove the car, whereas accused Vishal and co accused Sukhdev Pehalwansatonthebackseatofthecarand whiletheyweregoingto Khurja,inbetween BulandshaharandKhurjacoaccusedSukhdev Pehalwan andaccusedVishal Yadavpressed down Nitish Katara, whereas accused Vikas Yadavimmediatelystoppedthecarontheside oftheroadandgaveahardblowofasmall hammerontheheadofNitishKatara dueto which he became unconscious and after few minuteshedied.Itisfurtherdisclosedthat thereaftertheytookhisdeadbodyinthecar toKhurjaPhasuHillandaboutonekmaway fromShikarpurTeerahatheyputhisdeadbody along side of the road and accused Vishal removed mobile from the pocket of the deceasedandthewristwatchfromhishand

39

andconcealedthsameinthebushesstanding alongsidetheroad,whereasVikasYadavtook thehammer fromthecarandconcealedthe same inside the bushes standing nearby. AccusedVikasYadavtookoutdieselfromthe carthroughpipeandpouredthesameon thedeadbodyofNitishKataraandburnedthe same. AccusedVikasYadav disclosedthathe couldgetthehammerrecoveredfromtheplace where it was concealed. Similarly accused Vishaldisclosedthathecouldrecoverthewrist 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)

On25.02.02itselfaccusedVikasYadav

gaveaninterviewtothemediathaton16/17 0202 he had a minor quarrel with them (Unse) outside Diamond Palace. The word 'Unse'isusedincontextofNitishKatara. xxiii) On26.02.02SIAnilSomaniamoved

anapplicationbeforeCJMGhaziabad(UP)for thepolicecustodyofboththeaccusedpersons andon27.2.02twentyfourhourspolicecustody remand was granted by CJM Ghaziabad effectivefrom28.2.02at9amtill1.3.02(9 am).Theaccusedpersonswerealsoallowedby theCourttokeeponelawyerwiththemduring 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 Katarawasmurderedbythem.SIAnil Somania prepared Ex.PW35/23 the siteplan of theplace.Then theaccusedpersons ledthe policepartytoTpointofPhasuandShikarpur road and pointed out blackish spot on the ground and told that thedeceasedwas burnt there. Accused Vikas Yadav got recovered a hammer Ex.Pl from the nearby bushes and accused Vishal Yadav got recovered a wrist watchEx.PW7/ArticleA2fromthebushes/fields. SIAnilSomaniapreparedsiteplanEx.PW35/24 ofeachspotandsealedthehammerandwrist watchseparatelyatthespot.Therecoveryof hammer and wrist watch was effected in the

42

presenceofShSatpalYadav,advocateforthe accused persons and public witnesses Raghu andAslam.Thesealedparcelsofhammerand wristwatchwereseizedvidearecoverymemo Ex.PW34/1 prepared by the IO SI Anil Somania. Acopyoftherecovery memowas receivedbyShSatpalSinghYadav,advocateat the spot. Both the accused persons also received a copy of the recovery memo separatelyundertheirsignaturesonthespot. xxv) Thereafter on the same day ie on

28.2.02boththeaccusedpersonsledthepolice partytoHouseNo2MaharajabuildingAlwar (Rajashtan) for the recovery of Tata Safari vehicle and cell phone of thedeceased Nitish Katarabutnovehiclewasrecoveredfromthere. From there both the accused led the police partytoSariskaPalace,Alwarfortherecovery

43

ofTataSafari,butvehiclewasnotrecovered fromtheretoo.Theaccusedpersonsfurtherled thepolicepartytoahouseatShantiKunjin AlwarfortherecoveryofTataSafaributagain vehiclewasnotrecoveredfromthere. SI/IO Anil Somania prepared search memos of all thoseplacesEx.PW35/25,PW35/46andPW35/47, whichweresearchedfortherecoveryofTata Safari and cell phone of the deceased in pursuance to the disclosure statements of the accused persons. The police party alongwith theaccusedpersonsandtheirlawyerreturned from Alwar (Rajasthan) after midnight of 28/02/02 / 01/03/02 and after the medical examinationoftheaccusedpersonsasdirected bytheCourt, theywereputinlockupofPS Kavi Nagar.Therecoveredhammerandwrist watch weredepositedbyIO inmalkhanaof

44

thePSKaviNagarinsealedcondition. xxvi) On01/03/02boththeaccusedpersons

wereproducedintheCourtaftertheirmedical examinationandapplicationwasmovedbythe IOAnilSomaniaforgrantoftendayspolice custodyremandfortherecoveryofTaraSafari and cell phone of the deceased, however the application was dismissed by the CJM Ghaziabadvideorderdtd. 2.3.02.Theorderof theCJM waschallengedbythepoliceinthe CourtofDistrict&SessionsJudge Ghaziabad through a revision petition. The Ld. Session Judge Ghaziabad partly allowed the petition anddirectedtheCJMGhaziabadtohearthe police remand application of the IO again keepinginview that periodof 24hoursof policecustodywasnotsufficienttoeffectthe recoveryofTataSafariandcellphoneofthe

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 incompliance oftheorderpassed bytheMagistrateatDabra. xxviii) On08.03.02CJMGhaziabadpassed

order for the police custody remand of the accusedpersonsfor48hoursafterhearingthe investigatingagency, aspertheorder ofthe Session Judge Ghaziabaddtd. 06/03/2002the policecustodyremandwastobeeffectivefrom 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 beforetheMagistrateatDabraforthecustody

46

of the accused persons in compliance of the orderofCJMGhaziabad(UP)dtd.08.03.2002. xxix) As per the prosecution the lawyers of

theaccusedpersonsdelayedthehearingofthe application on the ground that they have challengedtheorderofCJMGhaziabad(UP)in AllahabadHighCourtandtherewaspossibility of astayorder fromtheHon'ble HighCourt. Evenaffidavits werefilledbythelawyersof the accused persons but no stay order was received/passedbytheHighCourtsoat6.40 pmon9.3.02MagistrateatDabraallowedthe application of SI Anil Somania for handing overthecustodyofheaccusedpersonstohim. HoweverjailauthorityatDabra(MP) refused to hand over the custody of the accused personstotheIOonthegroundthatthejail hadalreadybeenclosed.

47

xxx)

On 10.3.02atabout9.30amcustodyof

theaccusedpersonswasgiventotheIOSIAnil Somania by the jail authorities after their medical examination. From Dabra police party alongwith the accused persons left for ChandigarhfortherecoveryofTataSafaribut when they reached at Agra (UP), accused persons disclosed that Tata Safari and cell phonecanberecoveredfromShamshanGhat, neartaxistandatPanipat(Haryana).Accused personsledthepolicepartytoShamshanGhat 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 partyalongwiththeaccusedpersonsstayedat Panipat (Haryana) on 10.3.02. At Panipat

48

(Haryana) IO SI Anil Somania again interrogatedtheaccusedpersonsandthenthey disclosed to the IO that the Tata Safari bearing No. PB 07H 0085 was at Karnal (Haryana). xxxi) On11.3.02boththeaccusedpersonsled

the police party to a factory namely AB Coltex atKarnal (Haryana) andfrom inside the said factory got recovered Tata Safari bearingNo.PB07H0085inthepresence of PW 27 Sultan Singh chowkidar of the factory. IO prepared the recovery memo Ex. PW27/1oftheTataSafaributtheaccused personsrefusedtosignthesame,howeverthe same was signed by chowkidar of thefactory namelySultanSingh. xxxii) On the same day police party

alongwith the accused persons and the

49

recoveredTataSafaricamebacktoGhaziabad andaftermedicalexaminationaccusedpersons wereproducedintheCourtofCJMGhaziabad andaccusedwereremandedtojudicialcustody. IO deposited the Tata Safari No. PB07H 0085 inthemalkhanaofPSKaviNagar. xxxiii) Duringinvestigationitwasrevealed

that Tata Safari No PB 07H 0085 was registeredinthenameofOswalSugarLimited Company GT Road Mukerian Distt. Hoshiarpur(Punjab) inwhichSh DP Yadav, fatheroftheaccusedVikasYadavwasoneof the directors. It was also found during investigationthatpartofthemanagementof ABColtex CompanyatKarnal issameasin OswalSugarLtdMukeriaHoshiarpur(Punjab). xxxiv) PWAjayKatarawhohadallegedly

lastseenthedeceasedinthecompanyofboth

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the accused and their co accused Sukhdev PehalwanintheTataSafaribearingNoPB07H 0085atHapurChungiontheinterveningnight of 16/170202 when his scooter was broke down, hisstatementwasrecordedbytheIO on18/03/02.Hegavetheexplanationfordelay in informing the police by saying that earlier alsohehadapproachedthePSbutSOwas notavailable. xxxv) Coaccused Sukhdev Pehalwan was

abscondingsincethedateofincidentandwas not traceable so on 13.03.02. IO moved an application before the Court for initiating proceedingsU/s.82/83CrPCagainsthim.On 30.3.02accusedSukhdevPehalwanwasdeclared POandprize ofRs.2500/ waskeptforhis arrest. Accused Sukhdev Pehalwan, who was declaredasPOduringtrialwasfinallyarrested

51

on 23.02.2005 from Deweria(UP)and now is facingseparatetrialinthiscourtitself. xxxvi) The body of Nitish Katara was

crematedon12.03.2002. xxxvii) On2.4.2002complainant identified

therecoveredwristwatchasofhersonNitish 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 mobilephoneNo. 9811283641 andMsBharti YadavwasusingmobilephoneNo.9810038469 whichwasregisteredinthenameofherelder 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

nameofKunalYadav,youngerbrother ofthe accused.Thesaidmobilephonewasregistered withaddressB14GulmoharParkNewDelhi whereShDPYadavwasalsohavingofficeof his company Oswal Sugar Ltd. Another cell phoneNo.9811462100wasbeingusedbyMrDP YadavwhichwasregisteredinthenameofMr Vijayattheaddress ofB14 GulmoharPark New Delhi. Complainant Neelam Katara was usingcellphone No9810206299atthattime andheryoungerson NitinKatara wasusing cellNo.9811297136.Hewasalsousinganother cell phone No. 9822288216 of Pune, where he was studying/working at that time. Witness Bharat Diwakar was using cell phone No. 9810154964andGauravGuptahadusedphone of YashTomar bearing No. 9811220691on the intervening night of 16/170202. IO collected

53

thecallrecordsoftheaforesaidphonesforthe relevant period from the Airtel and Hutch Company. IO also collected cell ID charts of boththecompaniesofDelhiandNCRareas. xxxix) It was found during investigation

thatlandline No4713790,4751083and 4714101 wereinstalledattheresidenceofShDPYadav atGhaziabad.Sh.BharatSinghmaternaluncle oftheaccusedVikasYadavwashavinglandline No. 4721001 at his residence at Ghaziabad. ComplainantwashavinglandlineNos.3747555 and3366629installedathouseat7Chemsford Road, New Delhi. Deceased Nitish Katara had received several calls on his cell phone from the landline Nos. of Sh. DP Yadav and Sh. BharatSinghbeforethedateofincident.There were several calls made between Ms Bharti Yadav, Nitish Katara, Bharat Diwakar, Gaurav

54

Gupta,complainantNeelamKatara,NitinKatara etcbeforeandaftertheincident. xl) AftertheincidentMsBhartiYadavsent

emailstoNitinKataraabouttheincidentand conductoftheaccusedpersons. xli) During the course of investigation it

revealedthatMsBhartiYadavhadopenedan account No. 09065103027025 in BNP Paribas Bank,ConnaughtPlaceNewDelhiwhichwasin a building adjacent to the office of Nitish Katara. Ms Bharti Yadav while opening the accounthadgiventheaddressofNitishKatara 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 NitishKatarabearingNo. 003111144111. After the death of Nitish Katara Ms Bharti Yadav

55

changedheraddressinBNPParibasbankfrom 7ChemsfordRoadNewDelhitoB14Gulmohar Park,NewDelhiwherecompanynamelyOswal Sugar Ltd. of his father is based. The said companyalsoissuedacertificateinfavourof Ms Bharti Yadav at the time of change of addresstotheeffectthatB14GulmoharPark New Delhi was her office cum residential address. xlii) Duringinvestigationitalsorevealedthat

on 24.8.2000 Ms. Bharti Yadav, her sister Bhawana Yadav, her fianceD eepak Yadav,

NitishKataraandRockyYadavvisitedBombay tocelebratethebirthdayofBhawanaYadavvia a Jet Airways Flight No. 9W332. During the course of investigation IO SI Anil Somania recorded the statements of the witnesses and collectedtherelevantrecords.

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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 CJMGhaziabadalongwiththehammer.Asper thereport humanbloodwasdetectedonthe hammerbytheforensicexpert. 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 wasshownasPOashewasabscondingsince thedateoftheincident. xlv) On 06/05/2002 complainant Smt

NeelamKatarafiledatransferpetitioninthe Hon'ble SupremeCourt onthegroundthat therewasnochanceoffairandimpartialtrial atGhaziabadbecauseoftheinfluenceofthe

57

accusedpersonsandShDPYadavwhowas a member of Parliament at that time. On 23/08/02SupremeCourttransferredthecase fromtheCourtofGhaziabadtoDelhi. xlvi) Thechargesheetalsofindsmentionthat

accused Vikas Yadav was involved in three criminalcasesthedetailsofwhicharegivenas below: 1. CaseNo.109/91U/s302IPCPSKaviNagar. 2. Case No. 282/99 U/s 302/201 IPC PS Mehrauli,Delhi. 3. CaseNo.99/02,Sec.25ArmsActPSDabra, Distt.Gwalior,MP. xlviii) The accused Vishal Yadav was found

involvedinthefollowingcase: 1. CaseNo.100/02,Sec.25ArmsActPSDabra, Distt.Gwalior,MP. 3. Charge U/s. 364/302/201/34 IPC was

58

framedagainstboththeaccused,towhichthey pleadednotguiltyandclaimedtrial. 4. Insupport ofitscase,theprosecution hasexamined43witnessesinallwhichareas follows: PW1HCNemPalSingh PW2ChetRam PW3Dr.AnilSinghal PW4InsptChanderPalSingh PW5Ct.MudassarKhan PW6ArchanaSharma PW7RamLakhanSingh PW8Dr.T.DDogra PW9VikramSingh PW10Dr.SanjeevLalwani PW11ShivaniGaur PW12KulwantKaur PW13BhagwanB.Mathur PW14SandeepGoyal PW15VijayKumar PW16VedPalSingh PW17SIRameshChandMakholia

59

PW18HemantNarayan PW19JaiPrakashPandey PW20YashomanTomar PW21DeepakGupta PW22RKSingh PW23VirenderSingh PW24ShadiRam PW25BharatDiwakar PW26GauravGupta PW27SultanSingh PW28CtInderjeetSingh PW29CtBrijMohanMishra PW30SmtNeelamKatara PW31UmeshSharma PW32Ct.SatenderPalSingh PW33AjayKumar /AjayKatara PW34SIJKGangwar PW35SIAnilSomania PW36RevatiLau PW37AKSharma PW38BhartiYadav PW39NitinKatara PW40ShvendraTiwari PW41GulshanArora.

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PW42BhawanaYadav PW43SPSingh 5. i)

Formalwitnesses:PW1HCNemPalSinghistheduty

officer who recorded FIR No. 192/02 Ex.PW1/2. ii) PW13Sh.BhagwanB.Mathur,Executive

CoordinatorIMTGhaziabadwhoproducedthe studentrecordofPWsBharatDiwakar,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 Ghaziabadduringtheyearl9982000. iii) PW14Sh.SandeepGoyal,theowner

of Diamond Palace Banquet Hall at Kavi Nagar, where the marriage of PW11 Shivani Gaurtookplaceandfromwherethedeceased wasallegedlyabducted.

61

iv)

PW16Sh.VedPalYadavtheownerof

AravaliTouristTaxiServiceswhohadprovided taxiNo.DLlY4998on16/2/02at7.15pmto NitishKataraonhisrequisition. v) PW 24 Sh. Shadi Ram, driver with

AravaliTouristTaxiServices,whohadtaken NitishKataraandBharatDiwakartoDiamond Palaceon16.02.02inthetaxi. vi) CW2 Murari Lal Aggarwal, Executive

Clerk from the Court of ACJM Dabra had produced the record pertaining to remand papersandjudicialproceedingsincaseFIRNo. 99/02 under Arms Act against accused Vikas Yadav and case FIR No. 100/02 under Arms Act againstaccused Vishal Yadav as Ex. CW2/ltoEx.CW2/4respectively. vii) PW 43 Sh. SP Singh Commercial

Officer BSNL Ghaziabad who proved the

62

relevant records of telephone Nos. 4714101, 4751083,4713790and4721001.

Witnesses relating to the marriage ofShivani Gaur atDiamond 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 deceasedNitishKataraare:6. i) ii) PW11ShivaniGaur. PW19JaiPrakashPandey,Security

GuardatDiamondPalace. iii) iv) v) vi) vii) viii) PW20YashomanTomar. PW25BharatDiwakar. PW26GauravGupta. PW31UmeshSharma. PW38BhartiSinghYadav. PW42BhawanaYadav.

63

Witnesses relating to photography/ videography in the marriageceremonyofShivaniGaurare:7. i) ii) PW6ArchanaSharma. PW15VijayKumar

8. Witnesses who saw Nitish Katara in the company of accused persons outside DiamondPalace: i) ii) PW28CtInderjitSingh PW32CtSatenderPalSingh

9. Witness who last saw Nitish Katara aliveinthecompanyofdeceasedpersons: i) PW33AjayKumar

Recovery of deadbody & Inquest Proceedings:10. i) ii) PW23VirenderSingh PW4InsptChanderPalSingh

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iii)

PW5 Ct. Mudassar Khan had

accompaniedInspt.CPSinghfortherecovery ofthedeadbody.

11. i)

PostMortem:PW 3 Dr Anil Singhal CMODistrict

HospitalBulandshaharconductedpostmortemon theunidentifieddeadbodyon18/02/02.

Witnesses relating to Finger Printsoftheunidentifieddeadbody:12. i) PW 2 Chet Ram, Finger Print Expert

withFingerPrintBureauwithMalviyaNagar. ii) PW35SIAnilSomania

WitnessestoDNATestonthe unidentifieddeadbody:13. i) PW8Dr.TDDogra,AIIMSHospital

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NewDelhiunderwhosesupervisiontheblood samplesfromMrsNeelamKataraandMr.N MKatara, the parentsofthedeceased and samplesfromtheunidentifieddeadbodyofthe deceased werecollectedfor DNA test on 22.02.02videproceedingsEx.PW8/F. ii) PW10DrSanjeevLalwani,Sr.Resident

AIIMS hospital, New Delhi, who collected the abovesamples. iii) PW 17 SI RameshChandMakholia

who collected the samples for DNA from AIIMS hospital on 25.2.02 and on the same dayhetookthesametoCFSLCalcuttaand depositedthere.Healsocollectedtheremnants ofthesamplesandCFSLreportfromCFSL Calcuttaon06.03.2002. iv) v) PW35SIAnilSomania. PW37DrAKSharma,Asstt.Director

66

CFSL Calcutta, who proved DNA Report dated07.03.2002Ex.C1.

Witnessestooralidentification ofdeadbodyare:14. i) ii) iii) iv) PW30Mrs,NeelamKatara PW34SIJKGangwar PW35SIAnilSomania PW39NitinKatara

Witnesses to the Arrest of the accusedpersons:15. i) PW29CtBrijMohanMishraofPS

Dabra,DistrictGwaliorMP. ii) iii) iv) PW34SIJKGangwar. PW35SIAnilSomania. PW36InsptAshokBhadoriaofPS

Dabra(HeiswronglymentionedasPW36as priortohimPWRevatiLaulwasexaminedas

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PW 36 , hence this witness be read as PW 36A.)

16.

Disclosure statement of accused

persons:i) PW35SIAnilSomania

17. burnt: i) ii)

Pointing out of the place of

murder and place where deadbody was

PW34SIJKGangwar. PW35SIAnilSomania

18.

RecoveryofhammerEx.Platthe

instanceofaccusedVikasYadav:i) ii) PW34SIJKGangwar PW35SIAnilSomania

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19.

RecoveryofwristwatchEx/PW

7/Article A2 of the deceased at the instanceofaccusedVishalYadav:i) ii) PW34SIJKGangwar. PW35SIAnilSomania

20.

Identification proceedings of the

wristwatchExPW7/ArticleA2: i) PW 7 Sh Ram Lakhan Singh, Special

ExecutiveMagistrateGhaziabad ii) PW30 NeelamKatara,motherofthe

deceased. iii) PW35SIAnilSomania,IO.

21. RecoveryofTataSafaribearing registration No. PB07H0085 allegedly usedinthecommissionofthecrime:i) PW27 Sultan, Watchman with AB

Coltex, Karnal fromwherethesaid vehicle

69

wasrecovered. ii) iii) PW34SIJKGangwar. PW35SIAnilSomania.

22.

OwnershipofTataSafaribearing

registrationNo.PB07H0085:i) PW9VikramSingh,STAfromRegistrar

ofCompaniesPunjab,HimachalandChandigarh. ii) PW 12 Ms Kulwant Kaur, DTO

Hoshiarpur. iii) CW1MKKataradirectorOswalSugar

LtdMukeria(Punjab).

23.

Witnesses relating to alleged

Admission /confession ofaccusedVikas Yadavare:i) PW36RevatiLau,NDTVReporter/

Correspondent.

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24.

Both the accused persons

abscondedaftertheallegedcrime:i) ii) PW34SIJKGangwar PW35SIAnilSomania.

25.

Motive oftheaccusedpersons/

relationshipofPWBhartiSinghwiththe deceased:

i)

PW18HemantNarainan,Sr.Executive

JetAirways. ii) iii) iv) v) vi) PW30 Mrs.NeelamKatara.

PW38BhartiSingh. PW39NitinKatara PW40ShivendraTiwari,HDFCBank. PW42BhawnaYadav.

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26.

The witnesses relating to the

bankaccountofMs.Bharti Yadav with BNP Paribas Bank, Barakhamba Road andtothebankaccountofthedeceased with HDFC Bank Surya Kiran Branch, CP,NewDelhi:i) PW40 Shvendra Tiwari, Asstt. Manager,

HDFC Bank, Surya Kiran Branch, Connaught Place,NewDelhi.

27.i)

Phonecallrecord:PW21 Deepak Gupta, Nodal Officer,

HutchisonEssarTelecomLtd. ii) iii) PW22RKSingh,BhartiCellurLtd. PW41 Gulshan Arora, NodelOfficer

Hutch Essar, Okhla Industrial Area, Phase 2, NewDelhi.

28.

Statementofboththeaccusedpersons

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wasrecordedU/s313CrPC. i) Accused Vikas Yadav in his statement

U/s313 Cr.PC admittedthatPW38Bharti 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,whostudiedwithBhartiYadavinGargi College. However, he denied it for want of knowledgethatbothBharti YadavandNitish Katara(deceased)wantedtomarryeachother. Hefurtherdeniedthat he,hisfatherSh DP Yadav and coaccused Vishal Yadav were againstthemarriageofthetwoontheground that deceased was from the different communityandhisfamilywasofagovernment 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

serviceclass.Heclaimedthatheneverknew deceasednortheirplanstomarrysotherewas no reason for being averse to their marriage. HedenieditforwantofknowledgethatMs Bharti Yadav presented a wrist watch Esprit Ex.PW7/ArticleA2toNitishinDec.2001. ii) In answertoquestionNo.18thaton 16.2.02 Nitish Katara made a call from his mobileNo. 9811283641toMsBhartiYadavon her mobile No. 9810038469 at 3.42 pm he statedthathewasnotawareof.Similarly,in answertoquestionNo.19thatBharatDiwakar received a call on his mobile No. 9810154964 from Bharti Yadav from her mobile No. 9810038469at 5.20pmon 16.2.02, hestated that he was not aware of but he again statedthatasperhisknowledgeBhartinever hadamobile.However,hedidnotdenythe

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 andhismother, howeverhedeniedthattheir 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 alongwithBharatDiwakarinthetaxitoattend themarriage.Hestatedthathedidnotknow NitishKataraandthatwhenhewenttoattend themarriagefunctionthatnighthenevermet any person wearing red kurta ,white pajama and white shawl. He was shown the photographsEx.PW6/2andEx.PW6/3in

75

which PW11 Shivani Gaur was appearing alongwith other persons but he stated that exceptShivaniGaurhecannotidentifyothers. He was also shown the photographs Ex.PW 11/1toPW11/4inwhichbothBhartiYadavand NitishKataraareappearingbuthestatedthat hecanonlyidentifyBhartiappearinginthese photographs and that he did not know the person appearing in these photographs alongwith Bharti. Hewas alsoshownthe photograph Ex.PW11/5 ofNitishKatarabut he claimed that he did not know the person appearinginthephotographandhehadnever met him. He also denied it for want of knowledgethatdeceasedNitishKataraonthat daywaswearingawristwatchEspritEx.PW7/ Article A2 and was also possessing a mobile phone Samsung having No. 981l283641 . He

76

also denied that during marriage function BharatDiwakar,NitishKatara(deceased)and GuaravGuptaweretakingdinnerwhenhisco accusedVishaltookNitishoutoftheDiamond Palaceatabout11.15/11.30pmwhiletalking to him and thereafter a quarrel had taken place between him and Nitish Katara outside DiamondPalaceandthereafterhewastaken away in Tata Safari bearing No. PB 07H 0085towardsHapurChungi. iv) Itisclaimedthattheyhadnotgoneto

attendthemarriageatDiamondPalaceinTata Safari nor Nitish Katara and Sukhdev Yadav were with them nor they had gone towards Hapur. v) He furtherstatedthattheyhadtogo

topartyofAmitGandhiatRajnagarandhad taken therouteviaKaviNagar to RajNagar.

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HealsodeniedthattheyweretravellinginTata SafaribearingNo.PB07H0085alongwiththe deceased when their vehicle was stopped by thepoliceofficials CtSatenderPalSinghand CtInderjeetSinghpostedatChetak13,apatrol carnearDiamondPalaceforcheckingatabout 12.15/ 12.30midnight orwhiletraveling in thesamevehiclealongwiththepersons,referred above, analtercationtookplacebetweenthe accusedpersonsandPW33AjayKumar/Ajay KataranearthecrossingofHapurChungiwhen hisscooterbrokedownandhewasaskedby accusedVikasYadav inan uncivilisedmanner toremovehisscooterfromtheroadandinthe process PW33 Ajay Kumar noted down the number of the vehicle of the accused. He denied the evidencethatsince heandhis fatherShDPYadavandhiscoaccusedVishal

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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 SukhdevYadavandwas thereafter murdered and his body was burnt so as to avoid his identification. vi) It is admitted by accused Vikas Yadav

thathealongwithhiscoaccusedVishalYadav wereapprehendedattherailwaystationat Dabra but he denied that they were checked and itisclaimed that theywere straightaway apprehended afterbeingidentified andwere falselyarrested. vii) Healsoadmittedthathewasholding

a railway ticketfrom JhansitoDelhi atthe time when apprehended at Dabra Railway Station.Healsoadmittedthathealongwithhis

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coaccusedVishalYadavwerearrested under ArmsActatDabra. viii) Itisclaimedthatwhilehewasbrought

to Ghaziabad alongwith his co accused Vishal Yadav from Dabra, during transit he was interrogated andforcedtosignblank papers atAgraPoliceline. ix) He denied the recovery of hammer

Ex.P1,theweaponofoffenceathisinstance.He alsodeniedtohavepointed outtheplaceof murderortheplacewherethedeadbodywas burnt. x) RecoveryofTataSafariVehiclebearing

No. PB 07H 0085 from Karnal at their instancehasalsobeendenied. xi) Regarding his interview in connection

withthepresentcasetothemediaascontained incassetteEx.PW36/lhestatedthathehas

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seenthecassetteplayedintheCourt.Hewas tortured badly over there before he was interviewed. The inspector in the lockup had stubbedthecigarettebuds.He hasnotmade anyincriminatingstatementtothemedia.The cassetteplayedinthecourtistamperedasitis editedandhewantsthatthatoriginalcassette containing the complete recording is obtained from theconcerned person andplayed in the court.Ifthewholecassetteisseeninoriginal thethingswouldbeamplyclear.Hewasnever interviewed by Rewati Lau at all and it is a matterofrecordthatduetononavailabilityof thecassetteatthattimethewitnesscouldnot becrossexamined.Itdoesnotformpartofany seizurememoorofthelistofdocuments to be relied upon by the prosecution. It is claimedthathehasbeenfalselyimplicated.Itis

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also alleged the police had introduced certain interested witnesses who had deposed falsely. HeclaimedthatlikehimhiscoaccusedVishal Yadav also went to attend the marriage of Shivani Gaur with him in his Mercedes and greetedthecouplebuthadnottakenanyfood asthey were to attend another function of a friend.They remainedthereforashortwhile about15minutes.Whiletheywereleavingtheir sisterBhawnametthematthemaingate.She askedthemastohowtheywereleavingearly. He told her that he had to reach Karnal to attend another function and also reach his constituencyviaMukeria.Thereaftertheywent toattendpartyofAmitGandhiathishousein Rajnagarandafterattendingthepartyheleft forKarnalandVishalleftforhishome.Since thenextdayinthemorningtherewasahavan

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andintheafternoontherewasaringceremony atKarnalafterwhichheleftforMukeriaand afterfinishing his work in hisfactory, heleft for Bisoli on 18/2/02 in the evening and reached his constituency early in the morning on19/2/02.There,atBisolihecametoknow thathewasbeingframedinsomefalsecase. He was in Bisoli for arranging his counting agentsascountingwastobeheldafterabout four to five days. After that he left for Allahabad and reached there on 20/2/02 morningandcontactedArvindMishra,adv.The next day in the morning he was joined by Vishal.ThentheymetSr.advocatesMr.ADGiri andMr.JaiSingh.Theydiscussedthefactswith them and then they decided to surrender beforetheconcernedcourtatGhaziabad.He had also informed his advocate Rajender

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Chaudhary at Ghaziabad about their will to surrender. From Allahabad they started for Delhi by changing trains i.e Allahabad to Kanpur,KanpurtoJhansiandJhansitoDelhi. OnthewaytheygotdownatDabraStationfor some refreshments but were apprehended and confrontedunnecessarilybytheDabrapoliceon being recognized, as their photographs were flashed everywhere by print media and electronic media. He claimed to have left Allahabad on 22.2.02 forKanpur.Thereafter on23.2.02inearlyhourstheyreachedKanpur andwaitedinthewaitingroom andon the sameday theytooktraintoJhansiandfrom Jhansi they took train to Delhi on 23.2.02 to reachDelhi on24.2.02. Hefurtherclaimed thatthiscasewashighlightedandmediahype was such that it gives a reasonable inference

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that whole case against him is politically motivatedandhavebeenvictimizedbythoseat thehelmofaffairs.Itisclaimedthatheisa victim of the political rivalry and was falselyimplicated. xii) RegardingTataSafaribearingNo.PB

07H 0085, itisstatedthatthisvehiclewas 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 eveningitself.Thus,thereisnoquestionofhis 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 againsthim,thoughheadmittedthatMsBharti

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Yadavishiscousinsisterandwas studentof IMT Ghaziabad duringtheyear 19992000. He claimed that he was not aware of if Shivani Gaur, BharatDiwakar,GauravGupta and Nitish Katara ( deceased) were also studentsofIMTGhaziabad.Healsoclaimed thathewasnotawareifhiscousinsisterBharti YadavwasinlovewithdeceasedNitishKatara and they used to roam around together at different places and got themselves photographed vide Ex.PW1/1to 4showing their intimacy or used to exchange gifts or write love letters and sentgreeting cards to each other on different occasion. He also deniedthatBharti Yadavusedtocall Nitish Katara(deceased)asChimpu, Pudda''outof love and affection and Nitish Katara used to callherasGhuguandChuha.Healsodenied

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forwantofknowledgethatbothNitishKatara andBhartiYadavwantedtomarry.Hedenied andexplainedthathewasnotawareoftheir intention of getting married so there was no questionofhisbeingagainstthem.Itisstated that it was no reason to object to their marriage, so far he was concerned, for the reasonthatNitishKatarabelongedtodifferent communityandtoagovernmentservantfamily. He denied for want of knowledge if wrist watchEx/PW7/ArticleA2waspresentedby BhartiYadavtoNitishKatarainDec.2001. xiv) Headmittedthathealongwithaccused

Vikas Yadav had attended the marriage of Shivanion16/02/02atDiamondPalace,Kavi Nagar, Ghaziabad, however he denied that theircoaccusedSukhdevPehalwanwasalso with them. He alsoadmitted thathis cousin

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sistersBhartiYadavandBhawnaYadavand their mother had also attended the marriage but he could not say if Nitish Katara (deceased), Bharat Diwakar, Gaurav Gupta besidesothershadalsoattendedthemarriage. HeclaimedthathedidnotknowNitishKatara (deceased). He was shown the photograph Ex.PW6/2inwhichNitishKataraisappearing alongwithBharatDiwakar,BhartiYadav,Shivani GaurandheonlyidentifiedBhartiYadavand Shivani Gaur in the said photograph. He claimedthathewasnotawareofifdeceased NitishKatarawaswearing redcoloured kurta, whitecolourchuridaarpajamawithwhiteshawl on his shoulder, an Esprit wrist watch Ex.PW 7/Article A2 and was possessing a cell phone makingSamsunghavingmobileNo.9811283641, attended the marriage of Shivani Gaur. He

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deniedthatatabout 11.15/ 11.30pmwhile 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 talkingtohim. Healsodenied thatoutside DiamondPalaceBanquetHallhiscoaccused Vikas Yadav had a quarrel with deceased Nitish Katara and thereafter he was taken awaybyalltheaccusedpersonsinTataSafari bearing No. PB 07H 0085 towards Hapur Chungi. He also denied the prosecution evidencethatsincehiscoaccusedVikasYadav and his uncle DP Yadav were against the relationshipofNitishKataraandBhartiYadav, as such Nitish Katara was abducted by him alongwithhiscoaccusedpersonson16/1702 02fromDiamondPalaceKaviNagar,Ghaziabad

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and thereafter murderedhimandburnthis deadbody so that the same could not be identified. He claimed that he even did not knowNitishKatara. xv) Regarding the interview given by

accusedVikasYadavtoreporterPW36Revati Lauvidecassette ExPW 36/1 theaccused has admitted that as per the cassette an interviewwasgivenbyaccusedVikasYadavto NDTV reporterandthathehimselfwasalso appearinginthecassette.Hedidnotdenythe interview. xvi) It is claimed that he has been falsely

implicated. It is stated that on the date of marriageofShivaniGaurwhenhewasgoing toattendthesameandwhenhewasnearhis car he saw his cousin brother going in black Mercedes. They both had a talk and then

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accused Vikas Yadav told him that he was goingtoattendthemarriageofShivaniGaurso theybothwenttogether,enteredthepremises, 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 wasnearthemaingateandaskedthemasto why they were going so earlier, to which accusedVikas toldherthathehadtogoto Karnaltoattendanotherfunctionsotheyboth leftinthesamecar.Itisstatedthattherewas nobodyelsewiththem.FurtherfromDiamond Palacetheywenttothehouseoftheirfriend Mr Amit Gandhi to attend his betrothal ceremony and from there he went to his residencewhereashiscousinwenttoKarnal.It is stated that he remained in Ghaziabad till

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19.2.02 and when he came to know he was beingframedinthiscaseheleftforAllahabad on20.2.02wherehehadtomeet theaccused Vikas who had also left for Allahabad There theycontactedSh AN Mishra,advocateand 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 underArmsAct. xvii) In answerto courtquestion he

statedthattheyweretravellingbyGomtifrom Allahabad to Ghaziabad but he again stated thathedidnotremember. xviii) Inanswertofurthercourtquestion

hestatedthatcomplainantwasnotknownto

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him but she had problem against his family bywhichhemeanthismaternaluncleShDP Yadav. He also stated that police was also enemicaltowardsShDPYadav. 29.Indefencetheaccusedpersonshadproduced 26witnessesinallnamely DW 1Sh.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 10HC Chetlal, DW 11 Ombir, DW12ArvindMishra, DW13SarveshKumar Harit, DW14Manuj Diwan, DW15Vikam Garg, DW 16 Mahender Sharma, DW 17 Sandeep Mishra, DW 18 Dr Deepak Kumar, DW19JaiSingh,DW 20BP Mittal, DW21 Samar Singh, DW 22 Satpal Yadav, DW 23

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InsptSatyavirSingh,DW24Sh Sunil Kumar Sharma, DW 25 Jamshed Khan and DW 26 DilipKumarSingh. (i) Thepleatakenbyboththeaccused

personsintheirstatementU/s313Cr.PCisto theeffectthatafterattendingthemarriageof ShivaniGaurtheywenttoattendthebetrothal ceremony of Amit Gandhi, their friend and thereafter accusedVikasYadavleftforKarnal toattendanotherfunction.Toprovethisfact theyhaveexaminedDW1ShAshokGandhi, thefatherofAmitGandhiwhodeposedtothe effectthathewasresidentofR2/233Rajnagar 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 cumdinnerparty. Hedeposedaboutpresence

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of both the accused at his house from 11 / 11:30pm to 12 /12:15/12:30 midnight. He producedthreephotographs Ex. DW1/D1D3 showingaccusedVikasYadavandVishalYadav dancingalongwiththerelatives ofthewitness in photographs Ex DW 1/D1 2 whereas in photograph Ex. DW 1/D 3 accused Vikas Yadavisseeninthecompanyofthefatherof hisdaughter inlaw. Hefurtherstatedthat when both the accused had left at that time he was present at the gate and they had touchedhisfeetandheofferedthempacketof sweets.Hisservanthadkeptapacketofsweet in the vehicle of accused Vikas Yadav which wasanexclusivesalooncar.Hestatedthatit mustbeMercedes. ii) DW 2 Madhumohan Nair , an

employee of Nawab Motors E 11 Sec. 11

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Noida,wasexaminedbythedefencetoprove that Tata Safari bearing registration No. PB 07H0085 wasbroughttotheirworkshopon 16.2.02 for repairs at 10:49am and was delivered back on 10.03.2002. The detailed statementofthiswitnessshallbediscussedat theappropriatestage. iii) DW 3 Rajender Chaudhary adv, was

earlierthecounselforaccusedVikasYadavin this case itself when the matter was pending before Ghaziabadcourt. Hedeposedthaton 27.2.02anapplicationExDW3/Awasmoved by him giving names of four advocates includinghimselftobe presentalongwiththe accusedpersonsduringpolicecustodyremand. Hetestifiedthathehadaccompaniedboththe accusedduringpolicecustodyremand of 3 daysw.e.f28.2.02to01.3.02.Hestatedthat

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accused persons were collected by the police fromjailon28.2.02.Hewenttothejailinhis ownvehicleandshowedtheorderoftheCourt tothepolice.TheIOtoldhimthatheshould join them in his own private vehicle and wouldnotpermithimtositalongwiththemin theirvehicle.Assuchhefollowedthepolicein hisvehicleNo.DL5CB4595 to Khurja and he testified that in his presence no recovery waseffectedattheinstanceof eitherofthe accused nor any proceedings were conducted. He further testified that on 01.3.02 when accusedpersonsproducedintheCourtofCJM Ghaziabad heinformedtheCourtorallythat hewasappointedinthiscasetoaccompanythe accusedpersonsandnorecoverywasmadein hispresenceandthatafterhewasinformedby the Court that as per the police record

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recovery of hammer and watch was effected by the instance of the accused persons. He movedapplication Ex.DW3/D alongwithan affidavitExDW3/EbeforetheCourtthatno recoverywaseffectedfromthespotatKhurja at the instance of the accused persons in his presence. iv) DW 4 Pawan Kumar Diwan is the

fatherofDW14ManujDiwan,whowasgetting married at Karnal and a paryojan function wasorganisedathisresidenceon16/2/02and onnextmorningon17/2/02 therewassagan ceremony followed by ring ceremony at HighwayGreeninKarnalonChandigarhRoad. AsperthiswitnessaccusedVikasYadav had reached his house No. 204 L Model Town Karnal Haryana at about 3am on the intervening night of 16/170202 and

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arrangements of his stay was made at Karna lake. As per this witness, accused Vikas Yadav attended the function on 17/2/02 for about2 /3hours. Thewitnessproduced CDEx.DW4/1containingvideographyofthe functionheldatHighwayGreenshowingthe presenceof accused VikasYadavwiththe couple after the ring ceremony. This witness also produced two photographs mark DW 4/AandBrespectivelyofthefunctionshowing presenceofaccusedVikasYadav,ManujDiwan andhisfiancee. v) DW5ShRajkumarYadavwasthe

counselofaccusedVishalYadavinthepresent caseon27.2.02andhadmovedanapplication Ex.DW3/X seekingpermissiontoaccompany the accused persons during police custody remand.

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vi)

DW6ShNeeraj Gautam isanother

counsel who appeared in the court for the accusedpersonsafterregistrationofthepresent caseandattheinstanceofaccusedpersonshe 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 involvedinanycriminalcase. vii) DW7ShaktiChandisanemployee

of Nawab Motors. He produced the record pertainingtothevehicleNo.PB07H0085ie thejobcardbearingNo.221248Ex.DW7/A dtd 16.02.02. He also produced 13 various requisitionslipsforthevariouspartstobeused in the vehicle for repairs which are Ex DW 7/B to M respectively. He also produced the sparepartchartEx.DW7/Ppreparedonthe

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reverse of the carbon copy of the job card Ex.DW7/N.Healsoproducedthecomputerised vehiclehistoryattestedbyNotaryPublicwhich isEx.DW7/Q.Thecarboncopyofthegate passisEx.DW7/Randtwobankstatementsof thecompanyieNawabMotorsfortheperiod 27/ 28901 & 20/21202 Ex.PW 7/S and T respectively showing two payments made by cheque forasumof Rs. 20,000/andRs 25,000/ respectively. This witness also produced the job cards prepared in Nawab Motors in respect of other vehicles received beforeorafter receiptofTataSafariNo.PB 07H0085intheworkshop. viii) DW 8 Gaurav Agarwal, therecord

keeper in accounts with Indian Sucrose Ltd produced the record dtd 19.2.02 pertaining to paymentofRs.25,000/throughchequebyM/s.

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OswalSugarLtdtoNawabMotorswhichwas encashedon21.2.02.Heproducedthecertified copy Ex.DW 8/A of the bank statement of accountNo.35019inthenameofM/s.Oswal Sugar Ltd with Oriental Bank of Commerce Hauz Khas having its office at B 14 GulmoharParkNewDelhi. ix) DW9BhairavPrasad,anindependent

witness appeared in defence of accused Vikas Yadav to prove his presence in Bisoli constituencyon19.2.02. x) DW10HCChetLalprovedDDregister

containingDDNo12Adtd.17/2/02Ex.DW 10/A registered with PS Pahar Ganj on the complaint of Nishit Katara , father of the deceasedNitishKatara. xi) DW11Omvirproducedthemaintenance

and fuel register maintained in Oswal Sugar

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Mill regarding 13 vehicles owned by the companyincludingvehicleNo.PB07H0085. HealsoproducedaletterExDW11/Adtd. 12.7.07 written by Gayender Kumar, Chief Accountant of the company Indian Sucrose LtdwrittentothemanagerOBSHauzKhas New Delhi to issue a certificate and certified copy of the bank statement pertaining to accountNo. 35019Oswal SugarLimited.He also produced another letter written by Gayender Kumar to Nawab Motors which is Ex.DW11/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 leftat7:40pm. xii) DW12Arvind Mishra another practising

advocate at the Hon'ble High Court of

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Allahabad hasbeenexaminedindefence to provethepresenceofboththeaccusedpersons inAllahabadon20.02.02and21.02.02. xiii) DW13 Survesh Kumar Harit Asstt.

Engineerwasproducedindefencetoprovethe siteplan of Hapur Chungi the place where Nitish Katara was last seen by PW33 Ajay Katarainthecompanyofaccusedpersons. xiv) DW14ManujDiwanisthesonofDW4,

whose ring ceremony, accused Vikas Yadav as perhisstatementU/s313 Cr.PC,hadgone to attendatKarnalon17/2/02. xv) DW15VikramGargisthephotographer

examined with a view to prove that the photographEx.PW6/2ofNitishKataraalongwith otherstakenatthetimeofmarriageofShivani Gaur, was tampered with and contained different details then from the photographs

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Ex.PW6/D3anditsenlargedcopyEx.PW6/D4. xvi) DW 16 MahenderSharma, another

photographerhadappearedthiscourton6.5.03 alongwith his computer and had enlarged the photographEx.PW6/D3toEx.PW6/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) DW18DrDeepakKumarAgarwalhas

been examined qua PW 33 Ajay Kumar / AjayKatarawhowasadmitted inthePanna LalHospitalon1.7.07at10.10pmbyMrArun Garg Mr P Singh and Mr Lakhbir singh with the history of vomiting and pain in the abdomen. This doctor had examined him and AjayKataratoldhimthataround 8.30pmon thatday healongwithhisfriend hadtaken

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somechat,colddrinketcandwhenhereached homehestartedvomitingandfeltpaininthe abdomenandalsofeltthathewasadministered some poisonous substance through meals. He provedthecasesheetofthepatientasEx.DW 18/AltoA13respectivelyandtheinvestigation reportsEx.DW18/B1toB6.Hefurther 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 documentsEx.DW18/A9,A10andA11are bearinghissignatureatpointY.Heprovedthe MLC of patient prepared and signed by Dr RajeshinhispresenceasEx.DW18/C.This witnessfurthertestifiedthataftergoingthrough

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thereportsofAjayKatarahecouldsaythatit wasnotacaseofpoisoning. xix) DW19JaiSinghisanotherlawyerpractising atHon'bleHighCourtofAllahabad,whoclaims that the accused persons had met him at Allahabadon21.2.02whiletheyweregoingto thehouseofSradvocateShADGiri. xx) DW20BPMittalisanotherpractising

lawyeratDistrictCourtsatBulandshaharwho had filed a divorce petition of Mamta Katara against her husband PW33 Ajay Katara. The witnessproducedthecertifiedcopyoftheWS, certifiedcopyoftheorderpassedbytheCourt onthebasisofcompromisebetweentheparties andthecertifiedcopyofthedecreedtd27.7.04, which are Ex.DW 20/A to D respectively. Through the testimony of this witness the defencehastriedtoproveonrecordthatPW

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33AjayKatarawasresidentofvillageBamroli District Agra which fact was denied byAjay KatarainhisWSEx.DW22/Bandhegavethe addressofmatrimonialhouseasSec.11E,115 PratapViharGhaziabad. xxi) DW 21 Samar Singh is an another

advocatepractisingattheHon'bleHighCourt of Allahabad who claims that he has been handlingandlookingafterthecasesofShDP Yadav,fatherofaccusedVikasYadavsincethe year 1986.Thiswitnesshasbeenexaminedto theeffectthatSIAnilSomaniatheIOofthe present case when was posted in District SambhalfromwhereSh.DP Yadavwas MP, hadatusslewithShDPYadav sincehewas pursuing the matter of local inhabitants of SambhalConstituencyandsinceMrDPYadav haddeclinedtosupplythewinetothepolice

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officers free of cost, it resulted in his implicationinafalsecase. xxii) DW 22isadvocateSatpalYadav.

Theprosecutionhasclaimedthat thiswitness waspresentatthetimeofrecoveryofhammer Ex.P1andwristwatchEXPW7/ArticleA2 at the instance of both the accused persons since the recovery memo Ex.PW34/1. He was examinedbythedefencetotheeffectthathe wasnotpresentatthetimeofallegedrecovery. xxiii) DW 23 Inspt Satyavir Singh, Company

Commander, 41 Battalion ''H'' Company Ghaziabad UP was examined in defence to provethatAjayKataraisafalsewitnesstothe effect that he had gone to the residential complex47thBattalion,Ghaziabadon16.2.02to meetSubhashChand,anativefromhisvillage andanemployeeofUPpoliceand atabout

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12.10 am he left the place of Subhash Chand andwascomingbacktoDelhiwhenhisscooter wentoutoforder onthecrossingofHapur Chungiandfromhisleftsidefrombehinda vehicleTataSafaricameandhisscooterhad juststopped,thepersondrivingTataSafariwas accusedVikasYadavwhoinaveryuncivilised manner told him to remove the scooter and thenthewitnesswenttotheTataSafariand sawthedeceasedinthecompanyofboththe accused persons as well as their co accused SukhdevPehalwan. Thiswitnesstestifiedthathewas residing at the Residential Complex 47th BattalionGhaziabadalongwithhisfamilyfor thepast14yearsHestatedthatheremained postedwith47th Battalionforabout7years duringtheperiodl992tol999.Thereafterwe.f

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2000 he is posted in Ghaziabad with 41st Battalion. Hestatedthat 47th Battalionis equipped with sophisticated weapons to fight against terrorism and fundamentalists. In the residentialcomplexitselfthereisarmouryand magazinewherethearmsandammunitionsare stored and for its security the residential complexissurroundedbywallandthereisan entrypointandanexitpointandlinepoliceis postedonboththesepointsfor24hrs.Atthe 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 whetheritis47th or41 Battalion,an entry ismadeintheregister. xxiii) DW24 Sh Sunil Kumar Sharma,

Ahlmad to the Court of CJM Ghaziabad UP

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produced the summoned record pertaining to case No. 105/07Crime No. 77/07 ofPS Kavi Nagar titled as ''Smt Tanu Chaudhary Vs. Ajay Katara and Ors.'' U/s 498A/323/506 IPCand3&4DowryProhibitionAct. xxiv) DW 25 Jamshed Khan Deputy

Executive Producer Star News who had conductedastingoperationonSIAnilSomania &Ors. inFeb2005.Itisstatedthatthesting operation was conducted regarding encounter donebySIAnilSomaniatoexposeastohow falseencountersweredonebythepolice. xxv) DW 26 Sh Dalip Kumar Singh,

GroupEditorofJainTelevisionwasexamined indefencetoproveonrecordsomeinterview givenbyTanuChaudharywifeofAjayKatara, whichwastelecastedbyJainTVon20.2.05, however the witness could not produce any

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recordtothiseffectandtestifiedthatrecordis maintainedonlyfor90days.Thewitnesseven refusedtocommentupontheCDproducedby the defence counsel, containing any such interview. 30. I have heard arguments at length

addressedbyShBSJoon,Spl.FortheState 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 thehelpofabovenamedandhavealsogone throughthewrittensubmissionsfiledonrecord byboththeparties. 31. The present case is based on

circumstantial evidence for want of eye

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witness. Theprosecutionclaimstohaveproved

on record their case through the following circumstances: i) Presence of both the accused persons

and the deceased in the marriage of Shivani Gauronthenightof16/2/2002andduringthat night at about 11:15 / 11:30pm accused Vishal Yadav took deceased out of Diamond Palace whiletalkingtohim. ii) Therewasatutumainmain(exchange

ofhotwords)betweentheaccusedVikasYadav 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 presentcase. iii) Deceasedwas seen in the companyof

boththe accusedpersonsandtheircoaccused

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SukhdevYadav(facingtrialseparately) inTata SafariNo.PB07H 0085,firstlybyCt.Inderjeet PW 28 andCt.Satender PW 32whowere postedwithChetak 13 andwerecheckingthe vehicles during that night near Diamond Palace andjustafter5minutestheywereseenbyPW33 Ajay Katara at about 12:30 /12: 35 am near crossingofHapurChungi. iv) AfterthatNitishKatarawasnotseen

alive by anyone. Last call on his mobile phone No.9811283641 was received at 1:11 am from mobileNo.9810154964ofBharatDiwakar.After thatnoincomingoroutgoingcallwasmadefrom themobileofNitishKataranorany SMS was sentorreceived. 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/

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4:15amon23/2/02 underArmsAct.Theywere not available at their known addresses despite searchconductedbythepolicepartyduringthat period. vi) It was a stage managed arrest on

23/2/02becauseinhisexplanationU/s.313Cr.PC accusedVikasYadavhasspecificallystatedthatin theearlyhoursof23/2/02hewasatKanpur.So either his arrest was fake or his presence at Kanpurinearlyhoursasexplainedbyhiminhis statement U/s313CrPCwasfalse.Atthetime oftheirarrestaspertheFIRsEx.PW36/4and Ex.PW36/5theyhaddisclosedthattheywere involved in thekidnapping ofNitishKataraat Ghaziabad. vii) Intheapplicationdtd.24/2/02 partof

Ex.CW 2/B moved by the both the accused persons before Dabra Court, wherein it is

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mentioned that a case U/s 302 IPC was registered against them with PS Kavi Nagar GhaziabadwhereastillthattimeSection302IPC wasnotaddedintheFIREx.PW1/2registered with PS KaviNagar U/s 364 IPC.Section 302IPCwasaddedtotheFIRon25/2/02. Anapplication Ex.PW35/13AwasmovedbyIO on24.2.2002beforetheDabraCourtforobtaining transitremandoftheaccusedpersonsandeven inthisapplication IO hadnotmentionedSec. 302IPCbutonlySec.364IPC. viii) AccusedstatedinhisstatementU/s313

Cr.PC that he was tortured by the police with cigarettesbudsbeforetheir interviewtoNDTV, howevernosuchinjurymarksareseeninMLC dtd.28.2.02.Even thesaidstatementofaccused VikasYadav doesnotfindcorroboration from thestatementofaccusedVishalYadavU/s313

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Cr. PC, wherein he has nowhere alleged that accusedVikasYadavwastorturedbythepolice withthecigarettesbudsbeforetheinterviewon NDTVwasrecorded. ix) Recovery ofhammer Ex. Pl atthe

instanceofaccusedVikasYadavandrecovery ofwristwatchEX.PW 7/ ArticleA2 atthe instanceofaccused Vishal Yadav inpresence of adv. SP Yadav, in furtherance of their disclosurestatement Ex.PW 35/16andExPW 35/17respectively. x) Thewristwatchwascorrectlyidentified

bythecomplainantinjudicialTIPthatitwasthe samewatchwhichwasgiftedtoNitishKataraby BhartiYadavwhichwaswornbyNitishKatara atthemarriageofShivaniGaur. xi) Recovery of Tata Safari bearing

registrationNo.PB07H0085attheinstanceof

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both the accused from burnt thread factory AB Coltex at Karnal on 11/3/02 in the presence of PWSultanSingh,security guardofthefactory whichwasownedbyShDPYadav. xii After completion of the MBA Course

from IMT Nitish Katara took up a job with RelianceGeneralInsuranceandhisofficewasat Hans Plaza, Connaught Place. Bharti Yadav opened herbankaccountinBNPParibasBank, 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 residentialaddressofNitishKatara,thoughshe was having two addresses in Delhi, i e B14, GulmoharParkand15,BalwantRaiMehtaLane, NewDelhi,theofficialaccommodationherfather sincehewasMPduringthosedays.Theaccount

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wasopenedwithaninitialamountofRs.10,000/ throughacheque.Strangelyenoughthischeque wasissuedfromtheaccountofdeceasedNitishof HDFCBank. Assoonastheincidenttookplace on1/3/02theapplicationwasmovedbyBhartito BNPParibasBankforchangeofaddressfrom7 ChemsfordtoB14GulmoharPark. xiii. On 24/8/00, Bharti Yadav, Bhawna

Yadav, her fiancee Deepak Yadav and one RockyalongwithdeceasedNitish Katara visited Bombay to celebrate the birthday of Bhawna Yadavandnootherclosefriendaccompanied them. xiv CallrecordsofBharti Yadav,Nitish

Katara, Bharat Diwakar and Gaurav Gupta who was using phone of Yashoman tomar, Neelam Katara,NitinKatara,VikasYadavandSh.DP Yadav.

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xv

PhotographsofthemarriageofShivani

Gaur,IntimatephotographsofNitishKataraand Bharti Yadav, greeting cards, love letters and giftsetcsentbyBhartiYadavtodeceased.Allthe documentsaredulyexhibited. xvi Co accused Sukhdev Pehalwan

absconded and was arrested on 23/2/05 from Dewariya. xvii Human blood was detected on

hammerExPlaspertheCFSLreportEx. PW35/57. xviii Accused VikasYadavwasconvictedin

JessicaLalmurdercase.Hewas also involved in murder case in the year 1991 which was withdrawnintheyear1994. xix False plea of alibi taken by the

accused persons and false defence taken in statementU/s313CrPC,falsedefenceevidence

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ledbytheaccusedpersonstomisleadtheCourt. xx Postmortem report and deadbody of

theidentification.

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Inmyopinionthese20circumstances

canbesummedupasfollows: i ii iii Motive Abduction/Lastseen Recoveryofweaponofoffence,the

belongingsofthedeceased and TataSafari bearingregistrationNoPB07H0085. iv v Medicalevidence Identificationofthedeadbodyand

vi False defence taken by the accusedpersons. Alongwith arguments on aforesaid circumstances,argumentsontheprinciplesoflaw tobeappliedinsuchcaseswerealsoaddressed.

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ThelearnedcounselfortheaccusedpersonsSh. KNBalgopalandShSKSharmaplacedreliance upon1953Crl.LJ129HanumantVsStateofMP, 2007(2)JCCpage1249HattiSinghVsStateof Haryana, 2006 (10) Supreme Court Cases 172 RamreddyRajeshKhannaReddyVsStateof A.P,2003(1)CCCases(SC)145BharatVs StateofM.Pand1997Crl.LJ3686(DelhiHigh Court)ArunKumarVs.N.G.Mandi. The learned counsel for the accused persons Sh. KN Balgopal and Sh SK Sharma specificallyreferredtothefollowingparagraphof thevariousjudgmentscitedbythem. In 1953 Crl.LJ 129 HanumantVs StateofMP,thedefencecounselsreferredto paragraph10whichreadasunder: '' ......... In dealing with circumstantialevidencerulesspecifically

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applicabletosuchevidencemustbekept inmind.Insuchcasesthereisalways thedanger thatconjectureorsuspicion maytaketheplaceof legal proofand therefore, it is right to recall the warningaddressedbyBaronAldersonto the jury inReg.VS hadge (1938) 2 Leewin227wherehesaid: .........Themind wasaptto take a pleasure in adopting circumstancestooneanotherandeven instrainingthemalittle. Ifneedbe,to face them to form p