Delhi District Court
State vs . (1). Nitin on 8 May, 2015
FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 64/1/14 Unique Case ID No. 02404R0339542011 State Vs. (1). Nitin S/o Sh. Gopi Chand R/o H.No. 1036, Pana Paposiya, Narela, Delhi. (2) Balwan @ Naveen S/o Sh. Tek Chand R/o H.No. 1043, Pana Paposiya, Narela, Delhi. (3) Narsi S/o Sh. Mai Ram R/o Village Maharana, Panipat, Haryana. FIR No. : 305/11 Police Station : Alipur Under Sections : 302/201/120B IPC Date of committal to Sessions Court : 22.01.2013 Date on which judgment was reserved : 08.05.2015 Date on which Judgment pronounced : 08.05.2015 JUDGMENTState V/s Nitin etc. ("Acquitted") Page 1 of 36
FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 BRIEF FACTS OF THE CASE
1. The case of the prosecution as born out from the record is as under:
(i) That on 01.09.11 at about 6.45 P.M, intimation was received in PS Alipur that one dead body was lying at Hamidpur Road coming from Khampur village near fly over. Said information was recorded vide DD no. 81B ( Ex PW6/A) and same was entrusted to SI Sandeep Tushir ( PW24) for appropriate action;
(ii) That on receipt of DD no. 81B, SI Sandeep Tushir alongwith Ct. Satyavir Singh (PW23) rushed to the place of information and found dead body of one male aged about 2025 years in semi burnt condition lying near the bushes. Certain articles were also found lying near the dead body. In the meantime, SHO namely Inspector Sunil Kumar (PW6) alongwith staff also reached there. SI Sandeep Tushir handed over copy of DD no. 81B to Inspector Sunil Kumar who made endorsement ( Ex PW6/D) on the said DD and got the FIR in question registered through Ct. Anil (PW14). Investigation was entrusted to Inspector Sunil Kumar;
(iii) Crime Team was called at the spot. Accordingly, the Crime Team officials took photographs of the said place and also lifted chance print from one empty bottle found lying near the dead State V/s Nitin etc. ("Acquitted") Page 2 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 body. IO Inspector Sunil Kumar lifted the relevant exhibits from the said place and carried out necessary proceedings with regard to seizure of those exhibits;
(iv) The dead body was got removed to mortuary of BJRM hospital and further investigation was assigned to Inspector Satyavir Janaula ( PW31);
(v) That IO Inspector Satyavir Janaula collected call details of mobile phone number 9258822943. On analyzing said call details, it was revealed that deceased whose name was revealed as Anup @ Deepak, had frequent conversation with mobile phone numbers 9555590502, 9899626298, 9811803338 and 7404235066.
(vi) That on 03.09.11, IO Inspector Satyavir Januala prepared raiding team consisting of police officials and arrested accused Nitin on the identification of public person namely Pawan Kumar from railway station, Narela. Accused Nitin got co accused Balwan @ Naveen arrested from his house situated at Pana Paposia, Narela. Accused Nitin also got recovered one mobile phone and two SIM Cards of Vodafone by claiming them to be used at the time of commission of offence. Both the said accused also pointed out the place of occurrence and disclosed the name of their third associate as Narsi;
(vii) That on 05.09.11, postmortem examination on body of deceased was got conducted at BJRM hospital and the dead State V/s Nitin etc. ("Acquitted") Page 3 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 body was handed over to his relatives. The relevant exhibits including burnt clothes of deceased and blood sample of deceased were handed over to IO who seized the same;
(viii) That accused Nitin and Balwan @ Naveen refused to participate in judicial TIP before concerned MM. IO also got the scaled site plan prepared through draftsman SI Mahesh Kumar (PW15) and also got the relevant exhibits deposited in FSL, Rohini for DNA examination and subsequently collected the FSL result;
(ix) That co accused Narsi was arrested by police officials of Special Cell on 09.12.13 and intimation in this regard was received in PS Alipur vide DD no. 36A ( Ex PW30/A) on which subsequent IO namely Inspector Raj Pal Singh formally arrested said accused in the present case and also collected relevant documents from the office of Special Cell, Lodhi Colony. The accused Narsi refused to participate in his judicial TIP held on 10.12.13. After completion of investigation, chargesheet had been filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS State V/s Nitin etc. ("Acquitted") Page 4 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge for the offences punishable u/s 302/201/120B IPC against accused persons namely Nitin and Balwan @ Naveen vide order dated 18.12.2012 to which they pleaded not guilty and claimed trial. Vide order dated 24.02.2014, separate charge in respect of offences punishable U/s 302/201/120B IPC was again framed against accused Nitin and Balwan @ Naveen, to which said accused again pleaded not guilty and claimed trial. Charge in respect of offences punishable U/s 302/201/174A/120B IPC was framed against accused Narsi vide order dt. 20.03.14 to which said accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as thirty two witnesses namely PW1 Sh. Israr Babu, PW2 Sunny, PW3 Sh. Pawan Kumar, PW4 Sh. Gyan Dass, PW5 Sh. Rajesh Sharda, PW6 Inspector Sunil Kumar Sharma, PW7 Sh. Rajiv Ranjan, PW8 Sh. Samunder Pal, PW9 Sh. Om Prakash, PW10 Sonu, PW11 ASI Manish Kumar, PW12 Sh. Pawan Kumar, PW13 Sh. Ashok Kumar, PW14 Ct. Anil, PW15 SI Mahesh Kumar, PW16 Ct. Mosih Akhtar, PW17 HC Ram Singh, PW18 Parmod Kumar, PW19 SI (Retd.) Prem Singh, PW20 Ct. Shish Ram, PW21 Dr. Vivek Rawat, PW22 Ct. Ram Naresh Singh, PW22 Ct. Raj Kumar, PW23 Ct. Satyavir Singh, PW24 SI Sandeep Tushir, PW25 Ms. Rachna Tiwari, PW26 SI Neeraj, PW27 Sh. Prem Chand, PW28 Dr. B.K. Mohapatra PW29 HC Narender Singh, PW30 Inspector Raj Pal Singh and PW31 Inspector Satyavir Janaula, during trial.
State V/s Nitin etc. ("Acquitted") Page 5 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015
5. It may be mentioned here that all the three accused persons made joint statement during trial on 23.08.14 that they were not disputing the factum of issuance of certificate U/s 65 of Indian Evidence Act by CIPA Operator namely Ct. Vikas and they had no objection in case said witness is not summoned in order to formally prove the said certificate. In view of the said statement made by accused persons, the said certificate was exhibited as Ex. PX and consequently, Ld Additional PP dropped PW Ct. Vikas from the list of witnesses in view of the said statement.
6. It may be also mentioned here that Ld Additional PP dropped PWs namely Baljit Singh, SI Megh Raj, SI Kishan Kumar, HC Vinod Kumar, HC Suresh Kumar, Sh. Sandeep Gupta Ld MM Rohini Court and Ct. Anil from the list of witnesses vide his statements recorded on 22.08.14, 25.08.14 and 27.11.14 as those witnesses were either formal witnesses or were witnesses of repetitive facts in respect of which other prosecution witnesses had already been examined during trial.
7. It is also pertinent to mention here that accused Narsi who was arrested subsequently in the present case, made statement during trial on 25.08.14 that he was admitting some of the documents details of which were mentioned in his statement, filed by prosecution alongwith charge sheet. In view of said statement, Ld Additional PP dropped relevant PWs i.e. PW1, PW3, PW4, PW5, PW7, PW15, PW17, PW 19 to PW21 from the list of witnesses qua accused Narsi vide statement made on 25.08.14.
8. Thereafter, statements U/s 313 Cr.P.C. of all three accused persons were recorded and all the incriminating evidence which came on State V/s Nitin etc. ("Acquitted") Page 6 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 record, were put to them, which they denied. All three accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the three accused persons opted not to lead any evidence towards their defence.
9. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State, Ld. counsel Sh. B.L. Madhukar, Advocate on behalf of accused Nitin, Ld. counsel Sh. Vijay Malik, Adv. for accused Balwan @ Naveen and Ld. Counsel Sh. S.P. Dhankar, Advocate on behalf of accused Narsi. I have also gone through the material available on record.
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
11. PW2 Sh. Sunny: This witness is the son of the registered owner of motorcycle bearing registration no. DL8SNC8333. He deposed that although, accused Nitin was known to him as he was residing in his neigbourhood but he was not on talking terms with the said accused. He never gave aforesaid motorcycle to accused Nitin. He also deposed that police had made enquiries from him and had obtained his signatures on some blank papers. He identified said motorcycle as Ex. P1 during trial.
This witness was subjected to cross examination by Ld. Additional PP as he was not supporting the case of prosecution. During said State V/s Nitin etc. ("Acquitted") Page 7 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 cross examination, he deposed that police did not record his statement on 30.11.11 and he denied to have made statement U/s 161 Cr.PC mark A to the police. He also denied that on 30.08.11, he had given the motorcycle (Ex P1) to accused Nitin for some important work or that accused Nitin returned the said motorcycle to him on the same day at about 7.008.00 P.M. This witness has not been cross examined by accused persons despite grant of opportunity.
12. PW3 Sh. Pawan Kumar and PW4 Sh. Gyan Dass: Both these witnesses had identified the dead body of deceased Anup @ Deepak on 05.09.11 at BJRM hospital being brother and uncle of the deceased. In cross examination, they admitted that face of Anup was in burnt condition and it was not possible to identify his dead body by face. However, they clarified that they had identified deceased as the name of deceased as "Deepak" was engraved on his left hand. They admitted that deceased Deepak was proclaimed offender in one case. They denied the suggestion that they had identified some other dead body to be the dead body of Deepak.
13. PW8 Sh. Samunder Pal: This witness is the registered owner of motorcycle number DL8SNC8333. However, he deposed that he never gave said motorcycle to his son or to anybody else. The said motorcycle was seized by the police in this case and he got the same released on superdari from the Court vide superdarinama (Ex.PW8/A). He produced the said motorcycle and got the same exhibited as Ex. PX (Also Ex. P1). State V/s Nitin etc. ("Acquitted") Page 8 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 In his cross examination, he deposed that he had been using the said motorcycle himself and he had never given the same to anyone.
14. PW9 Sh. Om Parkash: As per the case of prosecution, this witness had seen the accused persons leaving scene of crime after committing murder of deceased on 31.08.2011 at about 3.30 pm. However, this witness deposed that on 31.08.2011 at about 3.003.30 pm, he was grazing buffaloes and cows in the fields of APMC. He had seen 34 persons sitting in Maruti 800 car, coming towards him. He told them that small bridge situated ahead of the road, was broken due to which road was closed. He also deposed that when he went towards pullia side as one of his buffaloes went there, he noticed one dead body lying in burnt condition.
Although, this witness claimed that he could identify the occupants of the said car if shown to him but when his attention was drawn towards the persons present in the Court Room, he deposed that none of the occupants of the said car, was present in the Court room.
This witness was subjected to cross examination by Ld Additional PP as he was not supporting the case of prosecution. During said cross examination, he deposed that police did not record his statement. He denied to hve made any statement U/s 161 Cr.PC dt. 02.09.11 (MarkX) to the police or having stated the police that he had seen 34 persons sitting in white colour Santro Car on 31.08.11 when he was grazing animals or that he had seen fire from the side of said car. He also denied to have visited PS Alipur on 03.09.11 or having identified two of the accused persons namely Nitin and Balwan in PS to be the same persons whom he had seen sitting in State V/s Nitin etc. ("Acquitted") Page 9 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 white colour Santro car on 31.08.11.
This witness has not been cross examined by accused persons despite grant of opportunity.
It may be noted here that aforesaid witness was recalled after arrest of accused Narsi and was again examined during trial qua said accused. Still, he did not support the case of prosecution and reiterated the same facts as testified by him previously on 18.02.13. He also failed to identify accused Narsi to be one of the occupants of Santro car having seen by him on 31.08.11. He also denied to have made any supplementary statement before the police on 10.12.13 or having identified accused Narsi in the custody of police official on that day.
15. PW10 Sh. Sonu: As per the case of prosecution, this witness had obtained mobile connection no. 9555590502 in the name of his neighbourer namely Pawan S/o Sh. Ashok (PW12) and had handed over the said mobile phone to accused Narsi few days prior to the date of incident. However, he has not supported the case of prosecution at all. Rather, he deposed that he was not knowing any person with the name of Narsi. He denied to have made any statement dt. 03.09.2011 (Mark X2) to the police or having obtained any mobile connection in the name of Pawan. Similar statement was made by this witness even after arrest of accused Narsi when he was again summoned during trial qua accused Narsi, on 23.09.2014.
16. PW12 Sh. Pawan Kumar: As per the case of prosecution, SIM number 9555590502 was got issued by Sonu (PW10) in the name of State V/s Nitin etc. ("Acquitted") Page 10 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 this witness. He deposed that his neighbourer namely Sonu S/o Sh. Chander Parkash (PW10) had purchased SIM Card no. 9555590502 on the basis of his driving license and he had handed over his ID proof being on friendly terms with him. However, he deposed that he had no knowledge if Sonu had misused the said SIM Card.
In his cross examination, he denied the suggestion that Sonu was not his friend or that he had not given any SIM Card to Sonu. He deposed that he had not filled up any form and did not sign any document including photocopy of his driving license. The SIM No. 9555590502 was told to him by the police. He had not handed over any document regarding ownership of mobile phone number 9555590502 to the police. He denied the relevant suggestions put to him on behalf of accused persons.
17. PW13 Sh. Ashok Kumar: As per case of prosecution, mobile phone number 9899626298 was issued in the name of this witness and said mobile phone connection was used by accused Nitin. However, he has not supported the case of prosecution at all as he testified that he never purchased any such mobile phone and he never gave any such mobile phone to accused Nitin.
This witness was subjected to cross examination by Ld. Additional PP during which he denied to have made any statement to the police on 03.09.2011. He denied to have given his mobile phone number 9899626298 to accused Nitin three months prior to 03.09.2011.
This witness has not been cross examined by accused persons despite grant of opportunity.
State V/s Nitin etc. ("Acquitted") Page 11 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015
18. PW18 Sh. Parmod Kumar: He is the photographer who had taken photographs of the place where dead body of deceased Anup @ Deepak was lying, on 01.09.2011 at about 7.30 pm at the instance of IO of the case. He deposed that after developing the photographs, said photographs alongwith negatives were handed over to the IO.
However, this witness was cross examined by Ld. Additional PP as no such photographs were found available on record. During said cross examination, he denied the suggestion that he did not hand over photographs or negatives to IO. He deposed that he could not produce said photographs or negatives before the Court for want of their possession.
In his cross examination, he denied the suggestion that no such photographs were taken by him.
19. PW27 Prem Chand: This witness has not supported the case of prosecution at all. He deposed that he neither applied nor obtained any mobile phone connection number 9811803338. He also deposed that photograph appearing on CAF of said mobile phone connection, was not his photograph and even the signatures appearing at pointA and B upon the said form, were not his signatures.
The witness was also cross examined by Ld. Additional PP as he was not supporting the case of prosecution. During said cross examination, he denied all the relevant suggestions put to him on the lines of prosecution story. He also denied to have made statement u/s 161 Cr.P.C. (Mark PW27/3) before the police.
State V/s Nitin etc. ("Acquitted") Page 12 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 In his cross examination on behalf of accused, he deposed that he never met with investigating officer of the case during investigation and his statement was never recorded by the police.
POLICE WITNESSES
20. PW6 Inspector Sunil Kumar Sharma: This witness remained IO of this case for few days. He was posted as SHO during the relevant period. On receipt of call, he alongwith staff had visited the place where dead body was found lying on 01.09.2011. He deposed that he made his endorsement Ex.PW6/B on DD No. 81B (Ex.PW6/A) and got the FIR registered through Ct. Anil. He had prepared site plan (Ex. PW6/C) and had also seized the relevant exhibits including belongings of dead body and prepared their sealed pullanda and seized them vide memos Ex.PW6/D to Ex.PW6/G4. He identified those exhibits (Ex.P1 to Ex.P7) during trial.
In his cross examination, he deposed that 1520 public persons were present when he reached the spot but he had not recorded statements of those public persons as identity of victim was not established by that time. He denied the relevant suggestions put to him on behalf of accused persons.
21. PW11 ASI Manish Kumar Bhardwaj: This witness was part of the Mobile Crime Team being Finger Print Expert. He deposed that he alongwith other members of Mobile Crime Team, had visited the spot on 01.09.2011, where he had developed one chance print from empty water bottle found lying near the dead body. The said chance print alongwith State V/s Nitin etc. ("Acquitted") Page 13 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 photographs were sent to Finger Print Bureau for matching but matching report was not found available in the file.
In his cross examination, he deposed that several police officials including SHO and ACP were present at the spot when he reached there at about 7.55 pm. The face of the dead body was burnt and he could not say as to whether anything was written on the dead body or not.
22. PW14 Ct. Anil: He deposed that on 01.09.2011, Duty Officer gave him DD No. 81B for being handed over to SI Sandeep who was already present at the spot. When he reached the spot, he noticed one dead body lying there. A water bottle was also lying near the dead body. He further deposed that IO had inspected the spot alongwith crime team and handed over to him tehrir on the basis of which, he got the FIR registered in the PS and handed over the tehrir & copy of FIR to IO for investigation.
In his cross examination, he deposed that SI Sandeep was present at the spot when he reached there. Crime Team had also visited the spot in his presence. He did not notice any sign or name on the dead body as he had not examined the dead body minutely. He had returned back to spot after registration of FIR after about 95 minutes or so.
23. PW15 SI Mahesh Kumar: This witness being draftsman, visited the place of occurrence alongwith IO/Inspector Sunil Kumar on 03.10.2011 and after taking measurements and preparing rough notes, he had prepared scaled site plan Ex.PW15/A. Nothing material came on record during his cross examination.
State V/s Nitin etc. ("Acquitted") Page 14 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015
24. PW16 Ct. Masih Akhtar : This witness was working as DD Writer in PS Alipur on 01.09.2011. At about 6.45 pm, he received information from wireless operator and had recorded DD no. 81B. He proved attested copy of DD no. 81B as Ex PW6/A. Nothing material came on record during cross examination of this witness.
This witness was again recalled for examination qua accused Narsi who had been arrested subsequently. He reiterated his earlier statement made by him during the trial.
25. PW17 HC Ram Singh: This witness deposed that he was posted as Duty Officer. He proved factum regarding recording of FIR No. 305/11 U/s 302/201 IPC in PS Alipur. He proved copy of said FIR as Ex.PW17/A and his endorsement as Ex.PW6/B made on the rukka. Nothing material came on record during cross examination of this witness.
26. PW19 Retd. SI Prem Singh: This witness was Incharge of Mobile Crime Team, Outer District, which had visited the spot on 01.09.2011. He deposed that one dead body of male aged about 2025 years was lying at the spot and upper portion of the dead body was burnt. ASI Manish had developed chance print from empty bottle lying near the spot. He carried out inspection of said place and prepared report Ex.PW19/A. He also identified the belongings of the deceased as also exhibits lifted from the spot (Ex.P1 to Ex.P6) during trial.
Nothing material came on record during cross examination on behalf of accused persons.
State V/s Nitin etc. ("Acquitted") Page 15 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015
27. PW20 Ct. Shish Ram: This witness is a formal witness who received telephone call from phone number 9810292546 in respect of one dead body lying near Khampur Village to Hamirpur Road near flyover. He had made entry in PCR Form No. 1. He proved the same as Ex.PW20/A. This witness has not been cross examined by accused persons despite grant of opportunity.
28. PW22 Ct. Ram Naresh Singh: This witness is a formal witness who deposed that on 30.11.2011, he was called by IO at PS Alipur, where he had identified motorcycle make Pulsar bearing registration no. DL8SNC8333 (Ex. P1) which was seized by IO vide memo Ex.PW2/A. This witness has not been cross examined by accused persons despite grant of opportunity.
This witness was again recalled for examination in respect of accused Narsi who was subsequently arrested in the present case. During said examination in chief, said witness deposed on the same lines as he had deposed earlier in his statement recorded on 13.09.2013.
This witness has not been cross examined by accused Narsi despite grant of opportunity.
29. PW22 Ct. Raj Kumar : This witness had joined investigation of this case with IO Inspector Satyavir Janaula, SI Neeraj and SI Sandeep on 03.09.2011 when accused Nitin is claimed to have been apprehended from Narela Railway Station on the identification of one public person namely Pawan @ Bholu.
State V/s Nitin etc. ("Acquitted") Page 16 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 He deposed that accused Nitin led them to the house of accused Balwan situated at Narela wherefrom accused Balwan was also arrested in this case. Both the accused made disclosure statements Ex.PW22/E and Ex.PW22/F and in pursuance thereto, they also pointed out the place where they had thrown the dead body of deceased. However, said witness wrongly identified accused Balwan as Nitin and accused Nitin as Balwan during trial.
In his cross examination, he deposed that they had gone in official gypsy but he could not disclose name of the person who was driving the said gypsy. He further deposed that IO had met several public persons on the way from PS to Narela Railway Station including at Ramdev Chowk, where they had stopped in between but IO did not request any public person including any official of Narela Railway Station to join the proceedings. The disclosure statements Ex.PW22/E and Ex.PW22/F were prepared outside the house of accused Balwan and he had signed the same there and then. He denied the relevant suggestions put to him on behalf of accused persons.
30. PW23 Ct. Satyavir Singh and PW24 SI Sandeep Tushir: Both these witnesses had visited the place of information on 01.09.2011 after receipt of DD no. 81B. Both the witnesses deposed that one male dead body aged about 2025 years was found lying near bushes in semi burnt condition and one empty water bottle was also lying near dead body. In the meantime, Inspector Sunil Kumar the then SHO of PS Alipur, also reached there alongwith staff. Copy of DD no. 81B was handed over to concerned SHO who made endorsement and got the FIR registered through Ct. Anil. State V/s Nitin etc. ("Acquitted") Page 17 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 Investigation was entrusted to Inspector Sunil Kumar who seized the relevant exhibits lying at the spot as well as the belongings of the deceased vide memos Ex. PW6/D to Ex. PW6/G4.
They further deposed that dead body was removed to mortuary of BJRM hospital by PW23 and after postmortem examination of dead body, same was handed over to his relatives.
PW24 further deposed that he again joined investigation of the case during intervening night of 02/030911 when raiding team consisting of IO Inspector Satyavir Januala, SI Neeraj, Ct. Raj Kumar Etc. was formed and they all went to Ramdev Chowk, Narela, Delhi in official gypsy where they met one public person namely Pawan Kumar who led police party to Narela Railway Station wherefrom accused Nitin was arrested on his identification, vide memo Ex. PW22/A. Accused Nitin led to the arrest of accused Balwan @ Naveen vide memo Ex. PW22/B. Both the said accused made disclosure statements Ex. PW2/E and PW2/F respectively. Accused Nitin got recovered one mobile phone make Samsung Duos containing two SIM cards of Vodafone. They were seized vide memo Ex. PW24/A. Both the aforesaid witnesses have been cross examined at length on behalf of accused persons.
31. PW26 SI Neeraj: This witness was also one of the members of the raiding party constituted by IO Inspector Satyavir Janaula during intervening night of 02/030911. He also deposed on identical lines as deposed by PW24 SI Sandeep Tushir as discussed in preceding paras.
In his cross examination, he denied the relevant suggestions put State V/s Nitin etc. ("Acquitted") Page 18 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 to him from the side of accused persons.
32. PW29 HC Narender Singh: This is a formal witness in the present case who deposed that on 12.12.2013, he alongwith IO Inspector Rajpal had joined investigation of the present case. This witness alongwith Inspector Raj Pal and accused Narsi had gone to the place of occurrence i.e. at vacant land situated behind village Khampur, Delhi, where said accused had pointed out the place of commission of offence and said witness has proved the pointing out memo as Ex.PW29/A. This witness has not been cross examined on behalf of accused Nitin and Balwan @ Naveen. Nothing material has come on record during cross examination made on behalf of accused Narsi.
33. PW30 Inspector Raj Pal Singh: This witness remained IO of this case from 10.12.13 till filing of supplementary charge sheet qua accused Narsi. He deposed that on 10.12.13 copy of DD no. 36A dated 09.12.13 (Ex. PW30/A) regarding arrest of accused Narsi by Special Cell New Delhi Range was handed over to him. Accordingly, he alongwith Ct. Anil Kumar visited Rohini Court and formally arrested accused Narsi vide memo Ex. PW30/B. He also collected copy of kalandara U/s 41.1(a) Cr.PC (Ex. PW30/D) from the office of Special Cell as accused Narsi was previously declared proclaimed offender in the present case. He also deposed that accused Narsi refused to participate in judicial TIP vide proceeding Ex. PW30/E. In his cross examination on behalf of accused Narsi, he denied State V/s Nitin etc. ("Acquitted") Page 19 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 the relevant suggestions put to him from the side of said accused.
34. PW31 Inspector Satyavir Janaula : He is the main IO of this case. He deposed about the entire investigation carried out by him from 02.09.11 till the filing of main charge sheet against the accused persons. He deposed exactly on similar lines as testified by PW24 SI Sandeep Tushir and PW26 SI Neeraj regarding arrest of accused Nitin and Balwan @ Naveen during intervening night of 02/030911 and recovery of mobile phone make Samsung Duo containing two SIM cards of Vodafone at the instance of accused Nitin and the relevant proceedings carried out with regard to recovery of said articles.
He also deposed that both the aforesaid accused had refused to participate in judicial TIP on 12.09.11. He also deposed that after getting postmortem examination on dead body of deceased Anup @ Deepak conducted, dead body was handed over to his relatives vide receipt Ex. PW31/D. He had seized sealed pullanda containing burnt clothes of deceased as also another sealed pullanda of blood sample and sample seal of BJRM hospital vide memo Ex. PW31/E. He had also seized one sealed small bottle containing two teeth of deceased sealed with the seal of BJRM hospital, vide memo Ex. PW31/F. He also deposed that he got the scaled site plan prepared through draftsman SI Mahesh Kumar on 03.10.11 and also got the relevant exhibits deposited in FSL Rohini on 24.10.11. He also deposed to have collected the relevant exhibits from FSL Rohini on 17.11.11 and seizure of motorcycle no. DL8SNC 8333, vide memo Ex. PW2/A. In his cross examination, nothing material came on record from State V/s Nitin etc. ("Acquitted") Page 20 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 the side of accused persons.
ELECTRONIC WITNESSES
35. PW1 Sh. Israr Babu: This witness is the Alternate Nodal Officer of Vodafone Essar Mobile Service Ltd. He exhibited the call details record as Ex.PW1/C pertaining to mobile no. 9811803338 w.e.f. 01.08.11 to 01.10.11 and the documents i.e. CAF supported by the declaration and photocopy of election identity card as Ex.PW1/A and Ex. PW1/B issued in the name of Arun Kumar s/o Sh. Jeet Singh and certificate U/s 65B of Indian Evidence Act as Ex. PW1/D and Cell ID chart as Ex.PW1/E. Nothing material came on record during cross examination of this witness.
36. PW5 Sh. Rajeev Sharda: This witness is the Alternate Nodal Officer of Reliance Communication Ltd. He exhibited the call details record as Ex.PW5/C pertaining to mobile no. 9555590502 w.e.f. 01.08.11 to 02.09.11 and the documents i.e. CAF supported by the declaration and photocopy of driving license as Ex.PW5/A and Ex. PW5/B issued in the name of Pawan Kumar s/o Sh. Ashok Kumar and certificate U/s 65B of Indian Evidence Act as Ex. PW1/D and Cell ID chart as Ex. PW5/D. Nothing material came on record during cross examination of said witness.
37. PW7 Sh. Rajeev Ranjan:This witness is the Nodal Officer of Tata Delhi Services Ltd. He exhibited the call details record as Ex.PW7/C pertaining to mobile no. 9258822943 w.e.f. 01.08.11 to 01.09.11 and the State V/s Nitin etc. ("Acquitted") Page 21 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 documents i.e. CAF supported by the declaration and photocopy of election identity card as Ex.PW7/A and Ex. PW7/B issued in the name of Ragib s/o Sh. A. Kadil.
He also exhibited the call details record as Ex.PW7/F pertaining to mobile no. 7404235066 w.e.f. 01.08.11 to 01.09.11 and the documents i.e. CAF supported by the declaration and photocopy of election identity card as Ex.PW7/D and Ex. PW7/E issued in the name of Baljeet S/o Sh. Gurdass. He also exhibited Cell ID Chart as well as Certificate U/s 65B of Indian Evidence Act as Ex. PW7/G and Ex PW7/H. Nothing material came on record during cross examination of said witness.
FORMAL WITNESSES:
38. PW25 Ms. Rachna Lakhanpal Tiwari : This witness had conducted judicial TIP of accused Nitin and Balwan @ Naveen vide TIP proceedings Ex. PW25/B on 09.09.2011. As per said TIP proceedings, both the said accused refused to participate in judicial TIP on the ground that police had taken their photographs.
This witness has not been cross examined by accused persons despite grant of opportunity.
39. PW28 Dr. B.K Mohapatra : This witness was posted as Senior Scientific Officer, GradeI, CFSL, CBI, New Delhi. He deposed that on 09.04.13, he had received two sealed parcels of case FIR no. 305/11 of PS Alipur. Upon opening parcel no. 1, it found containing one empty glass State V/s Nitin etc. ("Acquitted") Page 22 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 bottle alongwith one 50 ml falcon tube and has proved the same as mark Ex P1. He further deposed that on opening parcel no. 2, it found containing one gauze cloth piece having dirty stains. He proved his report with respect to examination of exhibits of the present case as Ex. PW28/A. This witness has not been cross examined by accused persons despite grant of opportunity.
Medical Witnesses:
40. PW21 Dr. Vivek Rawat : This witness had conducted postmortem examination on dead body of deceased Anup @ Deepak. He deposed that on external examination of dead body, no apparent injury was seen over the body in view of skin discoloration associated with autolysis and burns. However, postmortem burn injury seen over front of scalp, face, neck, chest, abdomen, perineum and front of both upper and lower limbs which is not associated with any vital reaction lying. Heat raptured seen over left posterior triangle of neck and lateral aspect of left shoulder.
He further deposed that on internal examination of dead body, extravasation of blood seen to sub cutateneous tissue and superficial and deep muscles of neck at thyroid level. No fracture seen to hyoid, thyroid and cricoid.
After examination of the dead body, he opined that the cause of death was asphyxia as a result of compression of neck. Approximate time since death was within three days prior to preservation in BJRM Mortuary. He proved his PM report as Ex.PW21/A. State V/s Nitin etc. ("Acquitted") Page 23 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 During cross examination, he deposed that he had not noticed any tattoo on the body of deceased and no apparent mark was seen over the neck of deceased in view of burn and autolysis or decomposition external.
ARGUMENTS ADVANCED AND CASE LAW CITED
41. While referring to the testimonies of prosecution witnesses available on record more particularly the medical evidence in the form of testimony of PW21 Dr. Vivek Rawat and PM report Ex. PW21/A, Ld. Additional PP vehemently argued that death of deceased Anup @ Deepak is proved to be homicidal in nature. He also referred to the relevant call details record placed on record, in support of his submission that accused persons had hatched conspiracy to commit the murder of deceased Anup @ Deepak and in pursuance of that conspiracy, they actually committed his murder and tried to destroy the evidence by setting dead body of deceased on fire. He, therefore, urged that accused persons should be convicted in this case.
42. Per contra, Ld defence counsels vehemently argued that prosecution has miserably failed to establish the charges levelled against accused persons beyond reasonable doubt. They referred to the testimonies of relevant prosecution witnesses more particularly those of public witnesses namely PW2 Sunny, PW9 Om Parkash, PW10 Sonu, PW12 Pawan Kumar and PW13 Ashok Kumar in order to bring home their point that none of the said witnesses supported the case of prosecution on any material point. They argued that burden was upon the prosecution to prove its case against the accused persons but the prosecution has failed to lead any cogent evidence State V/s Nitin etc. ("Acquitted") Page 24 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 connecting the accused persons with the commission of offences alleged in this case. They also argued that prosecution has failed to show that dead body found lying at the alleged place on 01.09.11, was that of Anup @ Deepak as claimed in the charge sheet. Therefore, all the accused persons deserve to be acquitted in this case.
43. As already discussed above, the entire case of prosecution is based upon circumstantial evidence and there is no eye witness account even as per the own case of prosecution as propounded in the charge sheet. It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved, the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with the ultimate crime and where the material links constituting the evidence are found missing then the benefit of the same goes in favour of the accused. Also, in a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be fully proved and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
44. As observed by the Apex Court in SharadBirdhichandsarda Vs. State of Maharashtra,(1984), 4 SCC 116, the following five golden principles constitute the panchsheel of the proof of a case based on State V/s Nitin etc. ("Acquitted") Page 25 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 CriLJ 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the State V/s Nitin etc. ("Acquitted") Page 26 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 accused and must show that in all human probability the act must have been done by the accused.
45. In the present case, the accused persons were charged with offences punishable U/s 302/201/120B IPC. Section 302 IPC reads as under: " 302. Punishment for Murder: Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine".
In order to appreciate the evidence available on record in the light of offence charged against the accused, it would also be appropriate to refer to the provision contained in Section 300 IPC which reads as under: Section 300 IPC Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly: If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury State V/s Nitin etc. ("Acquitted") Page 27 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
46. In the landmark judgment of Virsa Singh v. State of Punjab reported in (1958) 1 SCR 1495, the Hon'ble Supreme Court held that the following are the four steps of inquiry involved in the offence of Murder under section 300 IPC, clause thirdly:
"i. First, whether bodily injury is present; ii. second,what is the nature of the injury;
iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the four elements set out above was sufficient to cause death in the ordinary course of nature."
47. Now adverting back to the facts of the present case. The circumstances as relied by prosecution in the charge sheet for proving the State V/s Nitin etc. ("Acquitted") Page 28 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 offences punishable U/s 302/201/120B IPC can be summarized as under:
(i) Death of deceased Anup @ Deepak S/o Sh. Baljit Singh was homicidal in nature;
(ii) That the dead body of deceased Anup @ Deepak was found in partially burnt condition from inside bushes situated near Hamirpur Road fly over of Village Khampur, Delhi and one empty bottle having smell of kerosene /petrol was also found lying near the said dead body;
(iii) Two recharge Tata Indicom coupons were recovered from the pocket of wearing pant of deceased out of which one coupon was already scratched;
(iv) Recovery of mobile phone make Samsung Duo containing two SIMs of Vodafone at the instance of accused Nitin;
(v) Motorcycle bearing no. DL8CNC 8333 used by accused Nitin during commission of offence;
(vi) Last seen evidence in the form of statement of public person namely Om Parkash S/o Sh. Shree Bhagwan (PW9) who had seen accused persons leaving behind partially burnt dead body of deceased at small bridge( Pullia) situated near field of APMC on 31.08.11;
(vii) Use of mobile phone connection number 9555590502 issued in the name of Pawan S/o Sh. Ashok Kumar (PW12) by accused Narsi after said SIM card being handed over to accused Narsi by public person Sonu S/o Sh. Chander Parkash (PW10);
(viii) The factum of accused Narsi having been declared proclaimed offender by the Court and his subsequent arrest by Insp. Raj Pal Singh State V/s Nitin etc. ("Acquitted") Page 29 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 (PW30) for proving offence U/s 174A IPC against said accused;
(ix) Refusal of accused Nitin and Balwan @ Naveen to participate in judicial TIP as per their TIP proceedings Ex. PW25/B; and
(x) The lifting of chance prints from empty water bottle by Finger Print Proficient i.e. ASI Mahesh Kumar (PW11);
48. Although, Court does not find any substance in the contention raised on behalf of accused that prosecution has failed to establish the identity of male dead body found lying near APMC field on 31.08.11, to be that of deceased Anup @ Deepak S/o Baljeet Singh in view of unchallenged testimonies of PW3 Pawan Kumar and PW4 Sh. Gian Dass who are none else but brother and real uncle of deceased. Both the said witnesses categorically testified that they could identify dead body to be that of Anup @ Deepak as his name was engraved on his left hand and said fact was well within their knowlede. Accused persons preferred not to cross examine both the said witnesses on this relevant aspect.
49. No doubt, the prosecution has been able to establish on record that death of deceased Anup @ Deepak was homicidal in nature in view of unassailed testimony of PW21 Dr. Vivek Rawat who had conducted autopsy on the dead body of deceased and opined that death of deceased was due to asphyxia as a result of compression of neck as per PM report Ex. PW21/A. Nevertheless, prosecution miserably failed to establish its case that present three accused persons had hatched any conspiracy to commit the murder of deceased Anup @ Deepak or that they had committed his murder or had caused his dead body burnt by pouring kerosene /petrol and by setting him State V/s Nitin etc. ("Acquitted") Page 30 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 on fire.
50. The prosecution had produced several public witnesses i.e. PW2, PW9, PW10 PW12 and PW13. PW9 Om Parkashwas cited as the person who had lastly seen accused persons leaving the dead body of deceased near fields of APMC on 31.08.11, while he was grazing buffaloes and cows. However, PW9 did not support the case of prosecution on any material point except to the extent that he had seen 34 persons sitting in Maruti 800 car at about 3.30 PM on 31.08.11 at the said place. Rather, he deposed contrary to the case of prosecution when he claimed that those 34 persons had come in Maruti 800 car since the prosecution story as mentioned in the charge sheet is that accused persons had thrown away dead body of deceased at the said place when they had gone there in white colour Santro Car.
51. Be that as it may, PW9 failed to identify any of the accused herein to be amongst those 34 persons who were seen by him on 31.08.11 at the place of recovery of dead body of deceased. Rather, he categorically testified that none of the accused was seen sitting in the car at the said place on 31.08.11 when he was grazing his bufallows and cows. Nothing material could be elicited by Ld Additional PP during cross examination of said witness.
52. Similarly, prosecution claimed that one SIM Card No. 9555590502 was obtained by PW10 Sonu S/o Sh. Chander Parkash on the identity proof of PW12 Pawan Kumar and he had handed over said SIM card to accused Narsi 1520 days prior to 03.09.11. Although, PW12 Pawan State V/s Nitin etc. ("Acquitted") Page 31 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 Kumar supported the case of prosecution to the extent that he had handed over copy of his driving license to his friend Sonu for obtaining SIM card and accordingly, SIM No. 9555590502 was issued to Pawan but PW10 Pawan Kumar did not support the case of prosecution at all. He claimed his complete ignorance about the facts of the present case. He deposed that police never recorded his statement during the course of investigation. He also denied knowing any person having name of Narsi. He also failed to identify accused Narsi during trial. Nothing material could be brought on record during his cross examination by Ld Additional PP on behalf of State.
53. The prosecution claimed that PW2 Sunny had handed over motorcycle No. DL8CNC 8333 to accused Nitin being on friendly terms with him but again said Sunny when examined as PW2 during trial, failed to support the case of prosecution on the said aspect. He categorically denied to have handed over said motorcycle to accused Nitin. Not only this, prosecution also examined registered owner of said motorcycle i.e. PW8 Samunder Pal who also did not support the case of prosecution as he deposed that he never allowed to hand over his motorcycle to any person at all.
54. As regards the lifting of chance prints by PW11 ASI Manish Kumar, it may be mentioned that nothing has been brought on record by the prosecution to show as to how the chance print lifted from empty water bottle allegedly found lying near dead body of deceased, was relevant in this case. It has been testified by PW11 himself that he was not aware about the final result of said chance prints as he had sent said chance prints alongwith State V/s Nitin etc. ("Acquitted") Page 32 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 photographs to Finger Print Bureau for matching but he had no knowledge as to whether any report was collected by the investigating agency from there or not. The testimony of IO i.e. PW30 Inspector Satyavir Januala is totally silent on the said aspect. In this background, the only inference which can be drawn is that said report of Finger Print Bureau was not supporting the case of prosecution and that is why, said report was with held from the Court.
55. From the testimonies of relevant Nodal Officers examined as PW1, PW5 and PW7, it is evident that none of the mobile phone numbers i.e. 9811803338, 9555590502, 9258822943 and 7404235066 was issued in the name of any of the accused herein. There is no cogent or positive evidence available on record to show that any of these accused had been using any of the said mobile phone connections. That being so, all the relevant call details record or even Cell Id Location Chart relied by prosecution, cannot be of any use for the purpose of proving this case against accused persons.
56. It is well settled law that in a case based upon circumstantial evidence, motive assumes great significance and importance. It is all the more essential for the prosecution to establish motive which led the accused to commit the offence of murder. Absence of motive would put the Court on its ground and cause it to scrutinize in order to ensure that suspicion, emotion or conjectures do not take place of proof. Still if any authority is required then reference with advantage can be made to judgment of Hon'ble Delhi High Court in the matter reported at 2013 (2) JCC 1175 (Delhi). State V/s Nitin etc. ("Acquitted") Page 33 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015
57. In the present case, no motive whatsoever has been alleged against any of the accused persons what to say of proving it during the course of trial. The entire prosecution story as unfolded by its witnesses examined during trial, could not reveal as to what was the motive for the accused persons to commit the murder of Anup @ Deepak. Thus, motive to commit crime could not be proved on record by the prosecution.
58. The prosecution alleged that the accused persons hatched conspiracy with each other to commit murder of deceased. It is well settled law that in order to prove the charge of conspiracy, prosecution is supposed to establish that there was an agreement between accused persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. Thus, there must be meeting of minds resulting into an ultimate position taken by conspirators regarding the commission of crime. Conspiracy can be inferred even by the circumstances giving rise to an conclusive or irresistible influence of an agreement between two or more persons to commit an offence. The circumstances in a particular case, when taken together on the face value who indicate the meeting of minds between the conspirators for an intended object of committing an illegal act or an act which is not illegal by an illegal means. It has to be shown that all means adopted and illegal acts done were in furtherance of object of conspiracy hatched between the accused persons. A systematic role played by each accused should be high lightened. Each circumstance should be proved beyond reasonable doubt and such circumstances proved, must form a chain of events from which the only irresistible conclusion of guilt of accused can be safely drawn and no other State V/s Nitin etc. ("Acquitted") Page 34 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 hypothesis is possible.
59. In the matter titled as State Vs. Nalini reported at (1999) 5 SCC, 253, it has been held by Hon'ble Apex Court as under: " 583(1) Offence of criminal conspiracy is an exception to the general law where intention alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence to conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed."
60. Conspiracy has to be proved by leading substantive evidence. In the instant case, no substantive evidence has come on record to prove that any conspiracy was hatched between the accused persons except the disclosure statements made by them. There is no substantive evidence to show meeting of minds to form criminal conspiracy. There is no positive or concrete evidence available on record which may show that accused persons were previously known to each other or had any sort of connection amongst themselves without which the offence of conspiracy charged against them cannot be considered to have been proved beyond doubt.
61. In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the complete chain of circumstances which could connect the accused persons with the offences punishable U/s 302/201/120B IPC.
62. This brings me down to the offence punishable U/s 174A IPC against accused Narsi. As already mentioned above, accused Narsi was State V/s Nitin etc. ("Acquitted") Page 35 of 36 FIR No. 305/11; U/s 302/201/120B IPC; PS Alipur D.O.D.: 08.05.2015 declared proclaimed offender by the Court of Ld MM during the course of investigation. He is shown to have been subsequently arrested on 09.12.13 by the officials of Special Cell. It is well settled law that separate proceedings for offence U/s 174A IPC should be initiated against an accused who is declared Proclaimed Offender in another case rather than prosecuting him for the said offence in that very case wherein he is declared Proclaimed Offender. Still if any authority is required then reference with advantage can be made to the unreported decision in the matter titled as " Mohd. Jamal @ Ranjha Vs. State" decided on 23rd May, 2013 by our own High Court.
63. The net result of above discussion is that the prosecution has failed to bring home the guilt of all the three accused persons beyond shadow of doubt. Consequently, all the three accused persons namely Nitin, Balwan @ Naveen and Narsi are hereby acquitted of the charges levelled against them by giving them benefit of doubt. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
On 08.05.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Nitin etc. ("Acquitted") Page 36 of 36