“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2272 OF 2010

Gajraj …. Appellant

Versus

State (NCT) of Delhi …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. The facts, as they emerge from the judgment rendered by the Trial Court  

at  Karkardooma in Sessions Case no.68 of  2005,  decided on 21.4.2008,  the  

judgment of High Court of Delhi in Criminal Appeal no.461 of 2008 decided on  

18.3.2009,  and  the  statement  of  witnesses  examined  durin   g  the  course  of  

prosecution of the accused-appellant herein (which have been made available to  

us, in the form of additional documents), reveal that on 23.7.2005 at about 6.25  

p.m., a telephone call was received at Police Station Krishna Nagar, conveying  

information,  that  a  dead body was lying  in  House No.F-9/33,  Krishna Nagar,  

Delhi.   On  receipt  of  the  aforesaid  telephone  call,  Daily  Diary  no.31A  was  

recorded  at  Police  Station  Krishna  Nagar.  Police  officials  were  immediately  

deputed to the site. On enquiry it came to be concluded, that the dead body was  

that  of  Harish  Kumar,  resident  of  House  no.303,  Gagan  Vihar,  Delhi.   The  

deceased  Harish  Kumar,  had  suffered  bullet  injuries  on  the  left  side  of  the

temporal  region, as also,  on the left  side of the abdomen.  Accordingly, First  

Information  Report  bearing  no.297  of  2005  was  registered  at  Police  Station  

Krishna Nagar for offences punishable under sections 302, 452 and 380 of the  

Indian Penal  Code on 7.1.2006.   On 14.12.2007,  an additional  charge under  

section 404 of  the Indian Penal  Code was also framed against  the accused-

appellant.

2. Minakshi,  the  wife  of  the  deceased,  who  was  at  Chandigarh,  reached  

Delhi on receiving information that her husband Harish Kumar (deceased) had  

been  murdered.   She  identified  the  body  of  the  deceased  in  the  mortuary.  

Minakshi informed the police, that her husband was also with her at Chandigarh.  

And that, when he left Chandigarh for Delhi, he had in his possession a licensed  

revolver,  a mobile phone (sim) no.9871879824, as also, a sum of Rs.3 lakhs  

which was taken by him to Delhi, for negotiating a settlement.

3. During the course of investigation, the police was able to ascertain, that  

mobile phone (sim) no.9871879824 was being used on a mobile handset bearing  

IEMI  no.35136304044030.   On  further  investigation  it  was  found,  that  the  

aforesaid mobile handset bearing IEMI no.35136304044030 was being used for  

mobile  phone  (sim)  no.9818480558  immediately  after  the  murder  of  the  

deceased Harish Kumar.  Sim no.9818480558 was registered in the name of the  

accused-appellant.   It  is  through  this  investigative  process,  that  the  police  

eventually  reached  the  accused-appellant  Gajraj  Singh,  son  of  Veer  Singh,  

resident at 12/2, Kundan Nagar, Lakshmi Nagar, Delhi.   The police recovered  

from  the  accused-appellant  three  mobile  handsets,  one  of  which  was  of

Panasonic make bearing IEMI no.35136304044030, i.e.,  the handset in which  

sim no.9871879824 was used by the deceased. The police also recovered from  

the  accused-appellant,  the  licensed  revolver  of  the  deceased  Harish  Kumar.  

Complete and effective recovery was not made of the sum of Rs.3 lakhs which  

Minakshi (wife of the deceased Harish Kumar) had stated was in possession of  

the deceased, at the time he had departed Chandigarh for Delhi. The police, in  

order  to  establish  that  the  accused-appellant  was  in  possession  of  funds  in  

excess of his earnings, referred to a deposit of Rs.9,000/- in the account of the  

accused-appellant in the State Bank of India, Kundan Nagar Branch, Delhi. The  

said deposit  had been made on 25.7.2005 (the murder in question had been  

committed two days earlier, on 23.7.2005).

4. In order to bring home the charges, the prosecution examined a total of 29  

witnesses.  A perusal of the statements of the prosecution witnesses reveal, that  

the  conviction  of  the  accused-appellant  was  sought  merely  on  circumstantial  

evidence,  namely,  the  use  (and possession)  of  mobile  handset  bearing  IEMI  

no.35136304044030  on  the  date  of  murder  itself,  i.e.,  on  23.7.2005  by  the  

accused-appellant for mobile phone (sim) no.9818480558 (which was registered  

in  the  name  of  the  accused-appellant),  the  recovery  of  the  revolver  of  the  

deceased Harish Kumar along with live and spent  cartridges,  as well  as,  the  

deposit of Rs.9,000/- in the account of the accused-appellant with the State Bank  

of India, Kundan Nagar Branch, Delhi.

5. The Additional Sessions Judge, Karkardooma, Delhi disposed of Sessions  

Case No.68 of  2005 on 21.4.2008.   It  was sought  to  be concluded,  that  the

prosecution had been able to establish its case against the accused-appellant for  

offences punishable under section 302 and 404 of the Indian Penal Code.  The  

accused-appellant was, however, acquitted of the charges framed against him  

under sections 380 and 452 of the Indian Penal Code.  Thereupon by an order  

dated  28.4.2008,  the  accused-appellant  was  sentenced  to  undergo  rigorous  

imprisonment for life, and to pay a fine of Rs.50,000/-, for the offence punishable  

under section 302 of Indian Penal Code (in the event of default of payment of fine  

the accused-appellant was required to undergo further rigorous imprisonment for  

an  additional  period  of  three  years).   The  accused  was  also  sentenced  to  

undergo rigorous imprisonment for three years, and to pay a fine of Rs.5,000/- for  

the  offence  punishable  under  section  404  of  Indian  Penal  Code  (in  case  of  

default of payment of fine, the accused-appellant was required to undergo further  

rigorous imprisonment for four months).  The aforesaid sentences, awarded by  

the Trial Court, were to run concurrently.

6. Dissatisfied  with  the  order  passed  by  the  Trial  Court,  the  accused-

appellant  preferred Criminal  Appeal  No.461 of  2008 before the High Court  of  

Delhi.  The appeal preferred by the accused-appellant, came to be dismissed on  

merits, on 18.3.2009.  The sentence awarded by the Trial Court was however  

modified,  inasmuch as,  in  the event  of  non payment  of  fine,  imposed on the  

accused-appellant for the offence punishable under section 302 of Indian Penal  

Code, the High Court reduced the period of imprisonment in lieu thereof, from  

three years to six months.

7. The  accused-appellant  has  approached  this  Court  by  filing  the  instant  

appeal so as to assail the orders passed in Sessions Case No.68 of 2005 (dated  

21.4.2008) and in Criminal Appeal no.461 of 2008 (dated 18.3.2009).

8. During the course of hearing, learned counsel for the accused-appellant  

raised three contentions.  The first of the aforesaid contention was the basis of  

his primary emphasis.  The contention advanced was, that the accused-appellant  

had been implicated  on the basis  of  allegedly  being  in  possession of  mobile  

handset bearing IEMI No.35136304044030.  In so far as the instant aspect of the  

matter  is  concerned,  it  was  the  submission  of  the  learned  counsel  for  the  

accused-appellant, that the aforesaid mobile handset with the said IEMI number,  

was traced by the police on the disclosure of the wife of the deceased Harish  

Kumar.  And also because the accused-appellant was using mobile phone (sim)  

no.9871879824  on  the  aforesaid  handset.  Since  the  accused-appellant  was  

using a mobile phone (sim) registered in his (Gajraj Singhs) name on the mobile  

handset of the deceased (Harish Kumar), the police was able to ascertain his  

identity,  and  thereupon  reach  him.  The  object  of  the  learned  counsel,  while  

advancing the first contention, was to establish that the instant projection in the  

evidence produced by the prosecution, was to fabricate a false story to implicate  

the  accused-appellant.   According  to  learned  counsel,  discrepancy  in  the  

prosecution evidence would establish the objective of the first contention.  The  

sole  discrepancy  sought  to  be  pointed  out,  was  based  on  the  statement  of  

Minakshi,  the  wife  of  the  deceased  Harish  Kumar.  Minakshi  while  deposing  

before the Trial Court as PW23, had stated that her husband had called her at  

around 12 noon, and thereafter, at around 3 p.m.  It was sought to be asserted,

that the call details from exhibit PW25/DX reveal, that two incoming calls were  

received  from  a  Chandigarh  telephone,  at  around  the  time  expressed   by  

Minakshi PW23. It was pointed out, that as per the deposition of PW23, it should  

have been outgoing calls from mobile phone (sim) no.9871879824 (as Minakshi  

had claimed to have received the said two calls from her husband), yet as per  

Exhibit  PW25/DX,  these  were  incoming  calls.  Based  on  the  aforesaid  

discrepancy,  it  was  the  vehement  contention  of  the  learned  counsel  for  the  

accused-appellant,  that  the  factum of  tracing  the  accused-appellant  from the  

mobile phone (sim) of the deceased Harish Kumar was a complete concoction at  

the hands of the investigating agency.  It was also sought to be suggested, that if  

the investigating agency’s theory of reaching the accused-appellant was based  

on the call  details of  mobile phone (sim) no.9871879824,  the same becomes  

clearly unacceptable. According to learned counsel, it would be natural to infer,  

that the police could not have reached the accused-appellant on the basis of call  

details of phone no. 9871879824. And therefore, the question of recovery of the  

revolver, as also, the mobile handset (owned by the deceased Harish Kumar),  

from his possession, does not arise.  It was sought to be suggested that they  

must have been planted on the accused-appellant to implicate him.

9. In  so far  as the first  contention advanced at  the hands of  the learned  

counsel for the accused-appellant is concerned, learned counsel also invited our  

attention to the reasoning depicted in the impugned order passed by the High  

Court (dated 18.3.2009), wherein the accused-appellant has been linked to the  

incident on the basis of the following reasoning:

“26. Holding that the call record Ex.PW-22/A evidences that two  calls  from  Chandigarh  were  received  on  the  mobile  number  9871879824  in  the  afternoon  of  23.7.2005,  corroborates  the  testimony  of  the  wife  of  the  deceased  who  was  staying  at  Chandigarh on 23.7.2005 that she had talked to the deceased over  telephone in the afternoon of 23.7.2005, which in turn establishes  that  the  mobile  number  9871879824  was  being  used  by  the  deceased on the date of his death; that the call  records Ex.PW- 22/A  and  Ex.PW22/B  establishes  that  the  handset  having  IEMI  No.350608101231170, which handset was used by the accused on  a regular basis, was used by the deceased on 10th and 11th July,  2005 and that this establishes that the deceased and the accused  were  in  touch  with  each  other;  the  call  record  Ex.PW-22/B  evidences that the handset which was used by the deceased on the  date of his death was in possession of the accused soon after the  death of the deceased and that the same is a strong incriminating  circumstance against the accused; that the prosecution has been  able to establish that the handset which was used by the deceased  before his death and the revolver which was the weapon of offence  were recovered at the instance of the accused…..”

It  is  the  assertion  of  the  learned  counsel  for  the  accused-appellant,  that  the  

accused-appellant  could  never  have  been  traced  on  the  basis  of  the  mobile  

phone (sim) no.9871879824, as no call was ever made by the deceased Harish  

Kumar from the aforesaid mobile number to the accused-appellant.  Likewise, no  

call  was  ever  made  by  the  accused-appellant  from  his  mobile  phone  (sim)  

no.9818480558 to the deceased Harish Kumar.  As such it is submitted, that the  

conclusions drawn by the Trial  Court,  as also,  by the High Court,  are clearly  

unacceptable, and deserve to be set aside.

10. We  have  given  our  thoughtful  consideration  to  the  first  contention  

advanced at the hands of the learned counsel for the accused-appellant, as have  

been brought out in the foregoing two paragraphs.  We are however of the view,  

that the submission advanced by the learned counsel for the accused-appellant

cannot be accepted, keeping in mind the evidence produced by the prosecution.  

Even  though  we are  of  the  view,  that  the  learned  counsel  for  the  accused-

appellant is fully justified in pointing out the discrepancy referred to by him, in so  

far as the statement of Minakshi PW23 is concerned and  the reasoning rendered  

by the High Court, as has been extracted hereinabove, may not be fully justified,  

yet we have no doubt, that the manner in which the accused-appellant came to  

be identified and traced, (during the course of investigation) fully establishes the  

veracity of the prosecution case. The evidence produced by the prosecution is  

based on one irrefutable fact, namely, every mobile handset has an exclusive  

IEMI number. No two mobile handsets have the same IEMI number. And every  

time a mobile handset is used for making a call, besides recording the number of  

the caller as well as the person called, the IEMI numbers of the handsets used  

are also recorded by the service provider. The aforesaid factual position has to  

be kept in mind while examining the prosecution evidence.   The first step in the  

process of investigation was the receipt of information from Minakshi (the wife of  

deceased  Harish  Kumar),  that  the  deceased  was  using  mobile  phone  (sim)  

no.9871879824.  Evidence on record indicates, that the aforesaid sim number  

became dead on 23.7.2005,  i.e.,  the  date  on  which deceased Harish Kumar  

came to be murdered.  In the process of investigation it then emerged, that the  

mobile handset bearing IEMI No.35136304044030 was used with mobile phone  

(sim) no. 9818480558. This happened soon after the murder of Harish Kumar, on  

23.7.2005 itself. The same sim was used to make calls from the same handset  

upto  2.8.2005.  Through  the  statement  of  R.K.  Singh  PW22,  Nodal  Officer,  

Bharati  Airtel  Limited,  it  came  to  be  established,  that  mobile  phone  (sim)

no.9818480558 was registered in the name of accused-appellant Gajraj Singh. It  

is from the use of the mobile handset bearing IEMI no.35136304044030, that the  

police came to trace the accused-appellant Gajraj Singh.  It is only this aspect of  

the matter which is relevant for the purpose of present controversy. The use of  

Mobile  handset  bearing  IEMI  no.35136304044030  on  which  the  accused-

appellant  made  calls  from  his  own  registered  mobile  phone  (sim)  

no.9818480558,  immediately  after  the  occurrence of  the murder  of  deceased  

Harish  Kumar,  was  a  legitimate  basis  for  the  identification  of  the  accused-

appellant.  The accused-appellant was arrested on 6.8.2005. The nexus of the  

accused-appellant  with  the  deceased  at  the  time  of  occurrence  stands  fully  

substantiated from the aforesaid sim/IEMI details.  In the aforesaid sense of the  

matter, the discrepancy in the statement of Minakshi PW23, pointed out by the  

learned counsel for the accused-appellant, as also, the reasoning rendered by  

the  High  Court  in  the  impugned  judgment  becomes  insignificant.   We  are  

satisfied, that the process by which the accused-appellant came to be identified  

during the course of  investigation,  was legitimate and unassailable.  The IEMI  

number of  the handset,  on which the accused-appellant  was making calls  by  

using  a  mobile  phone  (sim)  registered  in  his  name,  being  evidence  of  a  

conclusive  nature,  cannot  be  overlooked  on  the  basis  of  such  like  minor  

discrepancies . In fact even a serious discrepancy in oral evidence, would have  

had  to  yield  to  the  aforesaid  scientific  evidence.   For  the  reasons  recorded  

hereinabove, we find no merit in the first contention advanced at the hands of the  

learned counsel for the accused-appellant.

11. The second contention advanced at the hands of the learned counsel for  

the  accused-appellant  was,  that  there  were  only  two  independent  witnesses  

associated with  the recovery of  the revolver,  and the mobile handset  bearing  

IEMI  no.35136304044030  (belonging  to  deceased  Harish  Kumar),  namely,  

Yuvraj PW12 and Veer Singh PW13.  The said revolver and the mobile handset  

were, allegedly, recovered at the instance of the accused-appellant Gajraj Singh.  

Yuvraj, while appearing as PW12, denied having signed the recovery memo.  He  

asserted that his signatures had been taken on blank papers, which had then  

been used in preparing the recovery memo.  A similar statement was made by  

Veer Singh PW13.  Pointing out to the statement made by the accused-appellant  

under  Section  313 Cr.P.C.,  it  was  submitted,  that  the  accused-appellant  had  

clearly maintained, that the investigating officer(s) in the case, had intentionally  

and deliberately implicated the accused-appellant.

12. We have examined the second submission advanced at the hands of the  

learned counsel for the accused-appellant.  Before evaluating the statement of  

Yuvraj  PW12  and  Veer  Singh  PW13,  it  is  necessary  to  keep  in  mind  their  

relationship with the accused-appellant.   While Yuvraj  PW12 is the brother of  

accused-appellant, Veer Singh PW13 is his father.  It is apparent, that they would  

leave  no  stone  unturned  to  ensure  the  acquittal  of  the  accused-appellant.  

Despite the aforesaid, it is clear from the submissions advanced at the hands of  

the  learned  counsel  for  the  accused-appellant,  that  neither  Yuvraj  PW12 nor  

Veer  Singh  PW13,  disputed  the  veracity  of  their  signatures  on  the  recovery  

memos.  It is, therefore, apparent that their signatures, on the recovery memos,  

were  authentic.   If  the  signatures  of  the  brother  and  father  of  the  accused-

appellant had been taken forcibly by the investigating agency, we have no doubt  

in  our  minds,  that  not  only the accused-appellant  but  also his  brother  Yuvraj  

PW12 and his father Veer Singh PW13, would have raised a hue and cry. They  

would have made representations to the concerned authorities pointing out, that  

the police had obtained their  signatures on blank papers.   The statements of  

Yuvraj PW12 and Veer Singh PW13 do not reveal any such action at their hands.  

We have,  therefore,  no  doubt  in  our  minds,  that  they  had  duly  affixed  their  

signatures on the recovery memos, vide which the revolver of the deceased, as  

also, the mobile handset of Panasonic make bearing IEMI no.35136304044030  

were recovered at the behest of accused-appellant Gajraj Singh.  In view of the  

above, we find no merit even in the second contention advanced at the hands of  

the accused-appellant.

13. The third and the last contention advanced by the learned counsel for the  

accused-appellant  was  in  respect  of  deposit  of  Rs.9,000/-  by  the  accused-

appellant  in his account  with the State Bank of  India,  Kundan Nagar Branch,  

Delhi.  It was the contention of the learned counsel for the appellant-accused,  

that Minakshi PW23, the wife of deceased Harish Kumar had pointed out, that  

the  deceased  was  having  in  his  possession  a  sum of  Rs.3  lakhs,  when  he  

departed Chandigarh for Delhi. The depiction of deposit of Rs.9,000/-, according  

to learned counsel, was a futile attempt at the hands of the prosecution to show,  

that the accused-appellant had deposited a part  of money taken by him from  

deceased Harish Kumar, so as to establish his nexus with the crime.  It  was  

asserted  that  the  prosecution  could  not  show  how  the  accused-appellant  

disposed of the balance amount.

14. It is not possible for us to accept even the third contention advanced at the  

hands of learned counsel for the accused-appellant.  We are satisfied that the  

amount of Rs.9,000/-, deposited by the accused in his bank account out of the  

total sum of Rs.3 lakhs may not be a justifiable basis to establish, that the alleged  

crime  was  committed  by  the  accused-appellant.   But  then,  keeping  in  mind  

overwhelming evidence produced by the prosecution in establishing the crime,  

namely, the recovery of revolver of the deceased from accused-appellant along  

with live and spent cartridges, the recovery of mobile handset of Panasonic make  

bearing IEMI No.35136304044030 from the custody of  the accused-appellant,  

and  the  fact  that  the  accused-appellant  was  using  the  same  soon  after  the  

murder of the deceased Harish Kumar with mobile phone (sim) no.9818480558  

which  was  registered  in  the  name  of  the  accused-appellant  (and  that  he  

continued  to  use  it  till  his  arrest),  leaves  no  room  for  any  doubt,  that  the  

prosecution has brought home the charges as have been found to be established  

against the accused-appellant, by the Trial Court as also by the High Court.

15. For  the  reasons  recorded  hereinabove  we find  no  merit  in  the  instant  

appeal and the same is accordingly dismissed.

……………………………. J.

(R.M. Lodha)

……………………………. J.

(Jagdish Singh Khehar)

New Delhi

September 22, 2011

Digital  Performa

Case  No.           : Criminal Appeal No.2272 of 2010

Date of Decision : 22.9.2011

C.A.V. on : 14.9.2011

Cause Title :  Gajraj Versus

State (NCT) of Delhi

Coram :   Hon’ble Mr. Justice R.M. Lodha Hon’ble Mr. Justice Jagdish Singh Khehar

Judgment delivered by  :   Hon’ble Mr. Justice Jagdish Singh Khehar

Nature of Judgment :  Reportable