Delhi District Court
State vs . 1) Rohit on 6 June, 2019
IN THE COURT OF SH. ASHUTOSH KUMAR, ADDITIONAL SESSIONS
JUDGE04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 57513/2016
CNR No. DLNT01
State Vs. 1) Rohit
S/o Sh. Kishan Chand
R/o H.No. B750, Second Floor,
Jahangir Puri, Delhi.
2) Feroj
S/o Sh. Mohd. Irfan
R/o G738, Jahangir Puri,
Delhi.
3) Arif Hussain @ Tatu
S/o Sh. Jakir Hussain
R/o Jhuggi no. 38/309,
CD Park, Jahangir Puri,
Delhi.
(Since proclaimed offender vide
order dated 25/02/2015)
FIR No. : 552/14
Police Station: Mahendra Park
Under Sections: 302/34 IPC
Date of committal to Sessions Court : 22/01/2015
Date of institution : 04/02/2015
Date of Argument : 24/05/2019
Date on which Judgment pronounced :06/06/2019
JUDGMENT
1. Briefly stated, case of prosecution is that on 16/09/2014 at about 11.50 p.m., DD no. 43PP was recorded at PP N.S. Mandi, Azadpur, PS SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 1 of 25 Mahendra Park, regarding beatings & serious injured at Fish Market near Adarsh Nagar Metro Station, gate of 'Tamatar Mandi' and it was mentioned in the said DD that the said information was telephonically conveyed to HC Praveen, who along with Ct Praveen would go to the spot and further action will be taken by I/C PP SI Mukesh Kumar. Accordingly, SI Mukesh Kumar along with HC Praveen and Ct Praveen reached at the spot i.e. Flat no. 1, DDA flat, Village Bhadola, where at the roof of the top floor, lot of blood was found spilled over. Three pieces of brick, one pair of slipper, one coffee brown coloured right foot shoe having no. 8 and bearing sticker of "CASUALZ", one brown coloured bedsheet, one wrapper of "OC Blue"
liquor bottle and another wrapper of "White & Blue" half, were also found lying. PCR van had already taken the injured to hospital. SI Mukesh Kumar left Ct Praveen at the spot and he along with HC Praveen reached at BJRM hospital, where one unknown person was found admitted in the hospital vide MLC no. 85125/14, on whose face and head there were multiple clean lacerated wounds and he (injured) was declared unfit for statement. No eye witness was found at the spot, so SI Mukesh Kumar along with HC Praveen after collecting the MLC, came back to the spot. Since no eyewitness was found present at the spot and from the circumstances, inspection of the spot & MLC, offence u/s 308 IPC was found to be committed, accordingly SI Mukesh Kumar prepared a tehri and handed over the same to Ct Praveen for getting the FIR registered. After registration of FIR, further investigation was handed over to SI Mukesh Kumar.
2. During investigation, SI Mukesh Kumar inspected the spot and SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 2 of 25 prepared site plan of the place of occurrence. Crime team was called at the spot and the spot was inspected by crime team. Crime team photographer took the photographs of the place of occurrence. Crime team report was collected and statements of witnesses were recorded. From the spot, one pair of slipper of red and black colour and one coffee brown coloured right foot shoe having no. 8 and bearing sticker of "CASUALZ", which were lying near the blood on the roof, were sealed in a cloth pullanda with the seal of "PK" and were seized. One brown coloured bedsheet, which was lying at a distance of 67 feet from the blood on the roof, was also sealed in a white cloth pullanda with the seal of "PK" and seized. Three pieces of broken brick, out of which one was big and two were of small size, which were lying near the blood on the roof, were sealed in a cloth pullanda with the seal of "PK" and were seized. One wrapper of "Officers Choice Blue" bottle and another wrapper of "White & Blue" half, were also found lying. Same were sealed in a cloth pullanda with the seal of "PK" and were taken into police possession. Blood sample was lifted with the help of cotton and was kept in a transparent plastic 'dibbi' which was tied with white tape and sealed with the seal of "PK" and was seized.
3. During further investigation, statement of eye witness Tarun, owner of Punjabi Vasnav Dhaba, was recorded, wherein he disclosed that one boy named Saleem is residing in his neighbourhood and his friends Rohit, Tatu and Firoz, who live in Jahangir Puri, used to visit him and they are previously known to him. He further disclosed that on 16/09/2014, at about 9.30 p.m. , Rohit, Tatu and Firoz came to him and another boy was also SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 3 of 25 accompanying them. They all were in inebriated condition at that time. Rohit gave order to him and asked him to send the food on the rooftop. Since there was no service boy with him, Rohit himself took the food on the roof. After about 45 minutes, Rohit made a phone call from mobile no. 9873224089 to his mobile no. 9268538838 and asked for one water bottle, 10 'roti' and one 'subzi' and Rohit himself took food on the roof. Tarun further disclosed that at 11 p.m. when h e was closing the dhaba, suddenly he heard noise of quarrel and shouting and he immediately rushed towards the roof and saw that Rohit and Firoz had caught hold of aforesaid fourth boy and Tatu was hitting him with a brick and was saying that he had robbed the mobile and he will teach him a lesson. He further disclosed that he became scared and therefore came downstairs and made a phone call at phone number 100 from the mobile phone of Mithlesh was who residing in nearby jhuggi. Rohit, Firoz and Tatu ran towards mandi. SI Mukesh Kumar recorded statement of caller Mithlesh. Statements of witnesses were recorded. Search for Rohit, Firoz and Tatu was made and case property was deposited in the malkhana.
4. During investigation, on 18/09/2014, SI Mukesh Kumar sought permission of the concerned doctor of LNJP hospital to record statement of injured but he was declared unfit for statement. SI Mukesh Kumar along with staff also made search for Rohit, Firoz and Tatu but they were found absconding from their houses.
5. On 19/09/2014, the name of injured was revealed as Lalit, son SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 4 of 25 of Duli Chand, R/o H.No. 224, Jahangir Puri, Delhi. Accordingly SI Mukesh Kumar reached at the house of said Lalit, where he came to know that Smt. Vimla (mother of Lalit) had lodged report regarding missing of his son Lalit vide DD no. 25A dated 18/09/2014 at PS Jahangir Puri. Accordingly SI Mukesh Kumar collected copy of DD no. 25A. SI Mukesh Kumar also made efforts to record statement of injured but injured was still unfit for statement. On 22/09/2014, injured Lalit was discharged from the hospital but he was not in a fit state to record his statement.
6. On 24/09/2014, DD no. 27A was recorded at PS Mahendra Park regarding death of injured Lalit. The said information was given to the family of said Lalit. SI Mukesh Kumar obtained the dead body of Lalit and got it preserved in the mortuary of BJRM Hospital. Efforts were made to arrest the accused persons but they could not be arrested. Section 304 IPC was added in the present case.
7. On 25/09/2014, SI Mukesh Kumar along with staff reached at the mortuary of BJRM hospital and prepared inquest papers. He also recorded dead body identification statements and got the postmortem conduced on the body of deceased Lalit vide PM No. 899/14. The concerned doctor handed over blood sample along with sample seal to SI Mukesh Kumar, which were taken into possession and were deposited in the malkhana. On the same day, accused Rohit and Firoz were apprehended from road no. 51 near Mukundpur Chowk on the basis of secret information and were arrested in the present case. Their personal searches were SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 5 of 25 conducted. Information regarding their arrest was given to their family members. Their disclosure statements were recorded, wherein they disclosed about committing the offence of the present case along with their associate Arif @ Tatu. Both the said accused were got medically examined. Statements of witnesses were recorded.
8. During further investigation, on 26/09/2014 accused Rohit and Firoz pointed out the place of occurrence i.e. roof of Punjabi Vaishno Dhaba, DDA Flat no. 1, Bhadola village. Accordingly SI Mukesh Kumar prepared separate pointing out memos of the place of occurrence by accused Rohit and Firoz. Tarun (owner of dhaba) also identified both the accused persons as the assailants. His statement to the said effect was also recorded. Accused Rohit and Firoz were produced before the concerned Court and their two days PC remand was obtained. Search was made for the third accused Arif @ Tatu but he was not traceable.
9. On 27/09/2014, SI Mukesh Kumar along with HC Rajesh and Ct Pradeep and both accused Rohit and Firoz went in search of third accused Arif @ Tatu and reached at IL RFS Environment Infrastructure and service Ltd., where said Arif @ Tatu was working as mechanic, but could not be found. Efforts were also made at other places, but no clue could be found.
10. On 28/09/2014, accused Rohit and Firoz were produced in the Court of ld. Duty MM, Rohini and they were sent to JC till 30/09/2014. During this period, search for third accused was made. On 30/09/2014, SI SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 6 of 25 Mukesh Kumar obtained JC remand of both the accused (Rohit & Feroz) till 14/10/2014. On 21/10/2014, NBW against wanted accused Arif Hussain @ Tatu was obtained. On 02/10/2014, request for obtaining the CDR of accused Arif Hussain @ Tatu was sent but despite effort for arrest of third accused, no clue could be found.
11. On 14/10/2014, 14 days JC remand of accused Rohit and Firoz was obtained. The sealed pullanda containing brick pieces with which Tatu had caused injury to Lalit (deceased) was sent to BJRM hospital through Ct Babloo for seeking subsequent opinion vide RC no. 94/21/14. statement of concerned MHC(M) was recorded in this regard. PCR form was collected.
12. On 17/10/2014, SI Mukesh Kumar collected postmortem report no. 899 of deceased, wherein the cause of death was opined as shock due to head injury produced by blunt force impact. All injuries were antemortem in nature and were sufficient to cause death in ordinary course of nature and were possible with the weapon of offence i.e. brick. The sealed pullanda of brick which was sealed with the seal of "FMT BJRM Hospital", was deposited in the malkhana. Accordingly instead of section 304 IPC, section 302 IPC was added. Thereafter further investigation of the case was marked to Inspector C.L. Meena,who had also made efforts to search accused Arif Hussain @ Tatu but nothing could be ascertained. On 21/10/2014, report on NBW against Tatu was submitted and process u/s 82 CrPC was obtained. On 03/11/2014, HC Jagmohan executed process u/s 82 CrPC. On 05/11/2014, exhibits were got deposited in FSL Rohini through Ct Mahaveer SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 7 of 25 for seeking opinion. FSL result was awaited.
13. On transfer of Inspector C.L. Meena, further investigation of the case was handed over to Inspector Rakesh Kumar on 02/12/2014. Inspector Rakesh Kumar got prepared the scaled site plan of the place of occurrence through Inspector Manohar Lal at the instance of SI Mukesh Kumar. Call detail records of all the three accused were obtained. Statements of witnesses were recorded. Despite efforts, accused Arif Hussain @ Tatu could not be arrested. It is mentioned in the chargesheet that after his arrest, supplementary chargesheet shall be filed against him.
14. On completion of investigation, chargesheet u/s 302/34 IPC was filed against accused Rohit and Feroz before the concerned Court of ld. MM on 23/12/2014. Accused Arif Hussain @ Tatu was kept in column no.12 of the chargesheet. The said chargesheet was received on assignment in this Court on 04/02/2015.
15. Since accused Arif Hussain @ Tatu was declared proclaimed offender vide order dated 25/02/2015, supplementary chargesheet was filed against him, which was received on assignment in this Court on 09/04/2015.
16. Vide order dated 21/04/2015, charge for the offences u/s 302/34 IPC was framed against both the accused, to which they pleaded not guilty and claimed trial.
SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 8 of 2517. During trial, supplementary chargesheet qua FSL result was also filed before the concerned Court on 21/08/2015, which was committed to the Court of Sessions on 24/08/2015 and was received on assignment in this Court on 25/08/2015.
18. In order to prove its case, prosecution has examined following 33 witnesses: S.No. Name of prosecution witness Purpose of examination 1 PW1 ASI Babu Khan, duty officer Who proved copy of FIR Ex. PW1/A, his endorsement Ex. PW1/B and certificate u/s 65B of Indian Evidence Act Ex. PW1/C. 2 PW2 ASI Rajbir, incharge, Mobile Who proved the crime team report Ex. PW2/A. Crime Team, Northwest 3 PW3 Ct Sandeep, Photographer, Who proved the photographs of the spot Ex.
Mobile Crime Team, NorthWest. PW3/A1 to Ex. PW3/A9 and CD of the said photographs Ex. PW3/A10.
4 PW4 W/Ct Meena Who proved the PCR form Ex. PW4/A.
5. PW5 HC Sheoraj Singh Who proved the PCR form Ex. PW5/A
6. PW6 Dr. R.S. Mishra, concerned doctor Who proved the MLC no. 85125 Ex. PW6/A. from BJRM hospital.
7. PW7 Dr. Suman, Sr. Resident, LNJP Who proved the reports Ex. PW7/A (regarding Hospital NCCT of head) & Ex.PW7/B (ultrasound abdomen).
8 PW8 Mithlesh, public witness who For proving the call made to PCR at 100 allegedly made call to PCR at 100 number.
number.
9 PW9 Tarun, public witness He deposed qua the incident in question. 10 PW10 Dr. R.P. Singh, Specialist Who proved postmortem report Ex. PW10/A forensic medicine, BJRM hospital, of deceased, sketch of weapon of offence i.e. Jahangir Puri, Delhi. brick Ex. PW10/B, subsequent opinion qua weapon of offence Ex.PW10/C 11 PW11 Bimla, mother of deceased Who proved the factum of missing of her son SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 9 of 25 Lalit (deceased), lodging of missing report vide DD no. 25A, visit of accused Arif @ Tatu (since P.O.) to their house, receiving of information about admission & treatment of his son in LNJP hospital, information provided to her by her son (deceased) regarding his beating by three boys and death of her son.
12 PW12 HC Jitender Singh, duty officer Who proved the factum of recording of DD no.
25A Ex. PW12/A qua missing of Lalit (deceased) on the basis of information received from Bimla Devi (mother of deceased).
13 PW13 Duli Chand, father of deceased Who proved his statement Ex. PW13/A qua identification of dead body of his son (deceased) and receiving of his dead body vide receipt Ex. PW13/B. 14 PW14 Shiv Kumar, maternal uncle of Who proved his statement Ex. PW14/A qua deceased identification of dead body of his nephew ('Bhanja') Lalit (deceased) and receiving of his dead body vide receipt Ex. PW13/B. 15 PW15 HC Satpal Singh, duty officer Who proved the factum of recording of DD no.
27A Ex. PW15/A in roznamcha regarding death of deceased.
16 PW16 Ct Bablu Ram, police witness Who proved the factum of obtaining the
sealed pullanda from concerned MHC(M)
vide RC no. 94/21/14, depositing the same at
BJRM hospital and obtaining of
acknowledgment qua the same.
17. PW17 Hari Om, brother of accused Who proved that mobile no. 9873224089 was Rohit (A1) in his name.
18 PW18 HC Mukesh, MHC(M) Who proved the relevant entries regarding depositing of case property in the malkhana and sending it to BJRM hospital & FSL Rohini for examination and opinion. He proved relevant entries qua the same vide Ex.
PW18/A, Ex. PW18/B, RC no. 99/21/14 Ex.
PW18/C and acknowledgment Ex. PW18/D. 19 PW19 Inspector Manohar Lal, Who proved the scaled site plan Ex. PW19/A Draughtsman prepared by him at the instance of SI Mukesh Kumar.
SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 10 of 2520 PW20 Israr Babu, Alternate Nodal Who proved CAF of mobile no. 9873224089 Officer, Vodafone Mobile Services Ltd. Ex. PW20/A {which was in the name of Hari Om (brother of accused Rohit)}, attested copy of election I/Card Ex. PW20/B (of Hari Om), its CDR Ex. PW20/C & supporting certificate u/s 65B Indian Evidence Act Ex. PW20/D;
ii) CAF of mobile no. 9654894658 Ex. PW20/E {which was in the name of one Irfan (brother of accused Feroz), photocopy of election I Card (of Irfan) Ex. PW20/F, its CDR Ex.
PW20/G & supporting certificate u/s 65B Indian Evidence Act Ex. PW20/G.
iii) Cell ID Chart of aforesaid numbers Ex.
PW20/H. 21 PW21 Ct Aavish, DD Writer Who proved the factum of recording of DD no.
43PP Ex. PW21/A regarding an assault near Adarsh Nagar Metro Station on the gate of Tomato Mandi and that one person is seriously injured.
22 PW22 Irfan (brother of accused Feroz) Who proved that SIM for mobile no.
9654894658 was purchased and used by him.
23 PW23 Dr. V.K. Jha, Medical Officer, Who proved surgical notes made by Dr. BJRM Hospital, Jahangir Puri, Delhi. Narender at portion X to X1 on MLC Ex.
PW6/A regarding medical examination of one unknown person.
24 PW24 Ct Praveen, witness to Who proved the initial part of investigation investigation conducted by SI Mukesh Kumar in his presence.
25 PW25 Pankaj Sharma, Nodal Officer, Who proved CAF Ex. PW25/A of mobile no.
MTS Mobile Servies Ltd. 8459487596 (which was issued in the name of one Nazir Hussain), photocopy of election I card Ex. PW25/B (of Nazir Hussain), CDR of said mobile phone Ex. PW25/C, supporting certificate u/s 65B Indian Evidence Act Ex.
PW25/D and Cell ID chart of said mobile Ex.
PW25/E. 26 PW26 Ct Mahavir Who proved the factum of depositing the sealed pullanda at FSL Rohini vide RC no.
90/21/14 after obtaining the same from MHC(M) and handing over of receipt of FSL to MHC(M).
27 Ct Pradeep Kumar, witness to Who proved the factum of visiting the 'dhaba' SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 11 of 25 investigation with IO SI Mukesh Kumar, recording of statement of 'dhaba" owner Tarun, efforts made for search of accused person, apprehension & arrest of accused Rohit & Feroz vide memos Ex. PW27/A & Ex. PW27/B respectively, conducting of their personal searches vide memos Ex. PW27/C & Ex.
PW27/D respectively, making of disclosure statements by them vide Ex. PW27/E and Ex.
PW27/F respectively in his presence.
28 PW28 Insepctor Mukesh Kumar, 1st IO Who proved the part of investigation conducted by him.
29 PW29 Ct Deepak, witness to Who proved the factum of arrest of accused investigation Rohit & Feroz in his presence vide memos Ex.
PW27/A and Ex. PW27/B respectively, conducting of their personal searches vide memos Ex. PW27/C and Ex. PW27/D respectively, recording of their disclosure statements Ex. PW27/E and Ex. PW27/F respectively and also pointing out of place of occurrence by both the said accused vide memos Ex. PW9/A and Ex. PW9/B respectively.
30 PW30 Inspector Rajendra Kumar Jain, Who proved subsequent investigation 3rd IO conducted by him.
31 PW31 Inspector C.L. Meena, 2nd IO Who proved the subsequent investigation conducted by him.
32 PW32 Ms. Poonam Sharma, FSL expert Who proved the factum of examining the exhibits biologically & serologically and proved her report Ex. PW32/A in this regard.
33 PW33 SI Rajinder Singh (retired), in Who proved the factum of removing one charge CMD47, PCR unknown injured to BJRM hospital.
19. Main witness of the prosecution PW9 Tarun who had allegedly witnessed the incident and PW8 Mithlesh who was allegedly informed about the incident by PW9 Tarun and who had made a call to PCR at 100 number from his mobile phone, have not supported the case of prosecution in any manner and had turned hostile and despite crossexamination by ld. Addl. PP SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 12 of 25 for the State, they did not support the case of prosecution at all regarding the incident and also on the point of identity of both the accused persons. Since after the examination of both these PWs, no incriminating evidence has come on record against the accused persons qua commission of offences in question, therefore recording of statement of both the accused persons u/s 313 Cr.P.C. was dispensed with.
20. I have heard ld. Addl. PP for the State and ld. Defence counsel for both the accused persons (Rohit & Feroz) and have carefully gone through the material available on record.
21. PW9 Tarun (eyewitness to the incident) has deposed that he is running a 'dhaba' in the name of 'Veshno Punjabi Dhaba' at Flat No. B1, DDA Flats, Bharola Village, Delhi and used to open the same at about 11 am and also used to close the same on or about 11 pm. He further deposed that on 16.09.2014, he closed his said 'dhaba' in between 10.45 - 11 pm and on the next day i.e. 17.09.2014 on or about 11 am, when came to his 'dhaba' for opening the same, public persons informed him that murder of one unknown person had taken place on the roof of his 'dhaba'. He further deposed that he also met the police officials, who made enquiries from him and he narrated the similar facts, which he has deposed before the Court during his testimony in the Court on 02/12/2015. Since PW9 did not support the case of prosecution in any manner and turned hostile, therefore, ld. Addl. PP for the State sought permission to cross examine him, which was allowed. However during his such crossexamination, PW9 Tarun has denied the suggestion that SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 13 of 25 he told to the IO that he was knowing one boy namely Salim who had been residing in the neighbourhood of his 'dhaba'. He has further denied the suggestion that he told to the IO that the friends of said Salim namely Rohit, Tatu and Feroz who are residents of Jahangirpuri, used to meet the said boy namely Salim or that he was also knowing said Rohit, Tatu and Feroz. He has also denied having made any statement U/s 161 Cr.P.C. dated 17.09.2014 Mark PW9/A to the police. He has further denied that he told to the IO that on 16.09.2014 at about 9.30 pm, accused Rohit & Feroz (accused herein) and Tatu came to his dhaba and they were also accompanied with one more boy or that said Rohit, Tatu and Feroz alongwith the said boy were under the influence of liquor. He has denied having made any statement U/s 161 Cr.P.C. dated 17.09.2014 Mark PW9/A to the police. PW9 Tarun has further denied the suggestion that he told to the IO that after coming to his 'dhaba', accused Rohit had ordered one 'Palak Paneer' dish and 10 'chapaties' and stated to him for bringing the aforesaid order at the roof of his (PW9's) 'dhaba' . He has further denied the suggestion that he told to the IO that since he was not having any boy/helper with him, he himself went to the roof of his 'dhaba' and supplied the said order. PW9 Tarun has admitted during his crossexamination by ld. Addl. PP for State that mobile phone bearing SIM No. 9268538838 was being used by him and has further admitted that the said mobile bearing SIM No. 9268538838 was in his possession and he was using the said mobile (at relevant time). He has voluntarily stated that his brother Naveen Arora is the registered owner of the aforesaid SIM number. He has further deposed that he did not remember that on 16.09.2014, he received a phone call from phone number 9873224089 on his aforesaid SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 14 of 25 mobile bearing SIM No. 9268538838. He has denied the suggestion that he told to the IO that after about 45 minutes of supplying the aforesaid order, he again received a phone call from phone no. 9873224089 made by accused Rohit on his mobile phone bearing SIM No. 9268538838 or that over the said phone call, accused Rohit had ordered for one bottle of water, 10 'chapaties' and one more dish or that upon the said phone call, he (PW9) took the aforesaid eatable items to the roof of his 'dhaba' or that after supplying the said eatable items, he came downstairs. During crossexamination of PW9 Tarun by ld. Addl. PP for the State, his attention was drawn towards the Call Details of incoming call from mobile phone no. 9873224089 to mobile phone no. 9268538838 on 16.09.2014 at about 22:05:58 hrs. from the CDRs of mobile phone no. 9873224089 and after going through the said document, PW9 has stated that as per said document, a call was received on mobile bearing SIM no. 9268538838 from mobile phone no. 9873224089. He has further denied the suggestion that he told to the IO that on or about 11 pm, while he was closing his 'dhaba' and was washing utensils, suddenly he heard some noises of quarrel coming from the roof of his 'dhaba' or that upon hearing the same, he rushed to the roof of his dhaba and saw that accused Rohit and Feroz had caught hold of the boy who had accompanied them to the roof or that he had also seen that Tatu (since PO) was causing brick blow over the said boy and was saying that the said boy had committed the theft of his mobile phone and he would not spare the said boy. He has further denied that upon seeing the said incident, he rushed downstairs or that since the battery of his mobile phone got discharged, he requested Mithlesh for making a call at 100 number or that upon his said request, Mithlesh made a SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 15 of 25 call at 100 number. He has further denied that he told to the IO he had also seen accused Rohit, Feroz and their accomplice Tatu (since PO) running away or that the fourth boy whom they were assaulting, had not come downstairs. He has also denied the suggestion that he also made a call to Beat Const. Pradeep and informed him about the occurrence. He has denied having made any statement Mark PW9/A to the police on the aforesaid aspects. PW9 Tarun has also denied that he made supplementary statement dated 26.09.2014 Mark PW9/B to the effect that on that day on or about 11 am, Ct. Pradeep, Ct. Deepak alongwith SI Mukesh Kumar had visited his 'dhaba' or that accused Rohit and Feroz were in their custody or that both the said accused persons had pointed out the roof of his 'dhaba', where they had committed the offence alongwith their accomplice Tatu (since P.O.) on 16.09.2014 and had caused beatings to Lalit (since deceased) or that in his presence, a pointing out memo was prepared. During said crossexamination, pointing out memos dated 26.09.2014 Ex.PW9/A and Ex.PW9/B allegedly prepared at the instance of accused Rohit and Feroz respectively, were put to PW9 Tarun and after seeing the same, he had identified his signatures appearing at pointsA on both the said memos. However he voluntarily stated that when he signed those documents, nothing was written on the same and the same were blank. In reply to Court question whether he can tell the date on which he signed the aforesaid two documents, he has stated that he did not remember the exact date, but he signed the said documents after 45 days of the date of incident. In reply to another Court question whether he can explain as to why and under what circumstances, he had signed blank documents as stated by him in his voluntary statement, he SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 16 of 25 replied that the police official whose name he did not remember, had asked him to sign blank papers on that day and without any objection from his side, he had readily signed the said papers. PW9 Tarun has further denied the suggestion that during investigation, he received any notice U/s 91 Cr.P.C. from the investigating agency whereby he was asked to supply the licence of his aforesaid 'dhaba'. During his said crossexamination by ld. Addl. PP, notice U/s 91 Cr.P.C. dated 17.12.2014 Ex.PW9/C issued by Inspector Rajender was shown to PW9 Tarun and after seeing the same, he admitted to have received the said notice during the investigation. He has also acknowledged the fact that the reply over the said notice appearing at portion X to X1, was in his own handwriting bearing his signature at pointA. He has also admitted that he told to the IO that his 'dhaba' is situated in DDA building and there is a shop measuring 12 x 10 feet on ground floor thereof and the said shop is in the name of his mother Smt. Sarla. He had also admitted that he also stated to the IO that there are other rooms on the first and second floor of said building and that the roof of the building wherein his 'dhaba' is situated, was not with him and he was not using the said roof. He has further admitted that he told to IO that there was no door for going to the said roof and anybody could have access thereto. He has further admitted that he told to the IO that there was a street light and the light of the said street light also covers the roof of the building wherein his 'dhaba' is situated. He has further admitted that he did not allow any person to consume liquor inside his 'dhaba' as his 'dhaba' is a 'Vaishno Dhaba' having 'Akhand Jyoti'. During crossexamination of PW9 Tarun by ld. Addl. PP for SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 17 of 25 State, his attention was drawn towards accused Rohit and Feroz present in the Court that day and after seeing them he stated that the said two accused persons never came to his 'dhaba' and he had never seen them prior to that day. He has specifically stated that he did not see any of the said two accused either at his 'dhaba' or on the roof of the building on the date of occurrence i.e. 16.09.2014. He has denied the suggestion that he was deliberately not disclosing the actual and true facts before the Court or that he had seen both the said two accused persons on 26.09.2014 when they alongwith police officials had visited the building, wherein his 'dhaba' was situated or that the said accused persons had pointed out the place of occurrence on said day in his presence. He has denied the suggestion that he was intentionally not identifying the said two accused being won over by them or that he was dissuaded by the 'Parokars' of both the accused persons from deposing true facts before the Court. During his crossexamination by ld. Defence counsels for both the accused persons, he has admitted that mobile having SIM connection no. 9268538838 used to remain in the 'dhaba' during working hours and that the said phone was being used for receiving orders by him and his employees working in the said 'dhaba' during the relevant period. He has voluntarily stated that whenever he happened to be present on the Counter of his 'dhaba', the said mobile phone used to remain with him. He has admitted that he himself did not attend any call from any mobile number during evening hours of 16.09.2014.
22. PW8 Mithlesh has deposed that he is having business of selling of SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 18 of 25 lemons at Azadpur Mandi, Delhi and on 16.09.2014 between 11.30/12 (night), he was going to Azadpur Mandi by foot and while walking when he reached near tomato shed, he saw public being gathered there. He further deposed that there one person namely Bobby borrowed his mobile phone bearing no. 7053558230 and made a call at number 100 and informed about the quarrel (ladaijagda). He further deposed that thereafter he went for his work. Since PW8 did not support the case of prosecution and turned hostile, therefore ld. Addl. PP sought permission to cross examine him, which was allowed. During his said crossexamination by ld. Addl.PP, he has denied the suggestion that he told to IO that on 16.09.2014 between 11.15 to 11.30 pm, while he was standing near 'Punjabi Veshno Dhaba', suddenly the owner of said 'dhaba' namely Tarun (PW9) came to him and stated to him that over the roof of said 'dhaba', a quarrel was taking place and one person was seriously injured or that upon this, he himself made a call at 100 number. He has further denied that PW9 Tarun also informed him that three boys of Jahangirpuri namely Rohit, Feroz (accused herein) and Tatu (since PO), whom he was knowing earlier also, had come alongwith one unknown person and they all had already consumed liquor. He has further denied the suggestion that PW9 Tarun also informed him that said three persons namely Rohit, Feroz and Tatu had giving beatings to the said unknown person or that Rohit and Feroz had caught of said person or that Tatu had caused injury with brick to the said person. He has also denied the suggestion that he told to the IO that due to fear, he went back to his house after making a call at 100 number. PW8 Mithlesh has denied having made statement U/s 161 Cr.P.C. Mark PW8/A to the police. He has further denied that he was SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 19 of 25 intentionally not making true statement before the Court being won over by the accused persons.
23. PW11 Smt. Bimla (mother of deceased) has also deposed before the Court that on 22/09/2014, while she was present in the hospital, her son Lalit had stated to her that three boys had given beatings to him but his son could not name the said assailants to her. Thus from her statement also, the identity of accused persons is not revealed.
24. As per discharge summary of Lalit (since deceased), he was discharged from Lok Nayak Hospital on 22/09/2014 and at the time of his discharge, he was conscious, oriented and his vitals were stable. In such circumstances, the IO should have recorded the statement of Lalit which could have revealed the identity of accused persons, but inspite of that IO has not recorded the statement of injured Lalit (since discharged) for the reasons best known to him.
25. From the evaluation of evidence of PW9 Tarun (eye witness to the incident),PW8 Mithlesh & PW11 Bimla, it is clear that prosecution has miserably failed to prove the identity of accused Rohit & Feroz as the assailants who along with their coaccused Arif Hussain @ Tatu (since P.O.) in furtherance of their common intention, had committed murder of Lalit Kumar (since deceased) by causing injuries including injuries with brick over his head. Moreover Even PW8 Mithlesh has also not supported the case of prosecution that he made any call to PCR regarding the incident from mobile SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 20 of 25 no. 7053558230. No call detail record of the said mobile phone is available on record which could have proved that any such call was made from the said mobile phone number, although from the PCR forms Ex. PW4/A & Ex. PW5/A available on record, it is proved that an information was received by PCR control room from mobile no. 7053558230 at about 23:41 hours & 23:47 hours that "fish market near Adarsh Nagar Metro Station, Tomato Mandi ke gate par ek aadmi ke sath kisi ne maarpit ki hai jo serious injured hai", but still it cannot be said that it was PW8 Mithlesh who had made such call to PCR in view of denial of PW8. As per record, DD no. 43PP Ex. PW21/A was also recorded on the basis of abovesaid PCR call received at about 23:41 hours. As per the case of prosecution, the incident took place at the roof of "Veshno Punjabi Dhaba", Flat no. B1, DDA Flats, Bharola Village, Delhi, but the place of incident as per the abovesaid PCR call on the basis of which DD no. 43PP was recorded at PP N.S. Mandi, Azadpur, PS Mahendra Park, is Tomato Mandi gate, fish market near Adarsh Nagar Metro Station. Hence there is no clarity qua the place of incident in the said documents. Since PW9 Tarun and PW8 Mithlesh have stated that no such incident took place at the said 'dhaba', therefore it does not stand proved that the deceased was assaulted, beaten and seriously injured on the roof of 'dhaba' in the manner claimed by prosecution. Thus even the place of incident is also doubtful.
26. As per prosecution case, on the day of incident i.e. 16/09/2014, accused Rohit had allegedly given order for food from the 'dhaba' from SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 21 of 25 mobile no. 9873224089 to the mobile phone no. 9268538838 (of PW9 Tarun). As per PW9, the said mobile phone no. 9268538838 was in the name of his brother Naveen Arora, but it was used by him. As per call detail record of mobile no. 9873224089 Ex. PW20/C proved by PW20 Israr Babu, the same was issued in the name of PW17 Hari Om (brother of accused Rohit). During crossexamination of PW9 Tarun by ld. APP, documents relating to call details of mobile phone no. 9873224089 filed by the prosecution along with chargesheet, were shown to PW9 Tarun and after seeing the same, he stated that a call was received on mobile no. 9268538838 from mobile phone no. 9873224089. As per call detail record Ex. PW20/C, from mobile phone no. 9873224089, calls were received at mobile no. 9268538838 at 22:05:58 hours, 22:26:20 hours, 22:34:21 & 22:53:16 on 16/09/2014.
27. In order to show the presence of accused persons at the spot, prosecution has placed reliance on record call detail records of mobile no. 9873224089 (Ex. PW20/C),9654894658 (Ex. PW20/G) and 8459487596 Ex. PW25/D).
28. According to PW17 Hari Om (brother of accused Rohit), mobile no. 9873224089 was issued in his name and was being used by him and he never gave the said mobile to accused Rohit. PW17 also turned hostile and was crossexamined by ld. Addl. PP for the State and during his said cross examination, he has denied the suggestion that he told to the IO that aforesaid SIM number was being used by his brother Rohit (accused herein).
SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 22 of 25He has also denied having made statement Mark PW17/A to the police. He has denied knowledge about SIM no. 9268538838 and stated that he never made any call from his mobile number to the mobile no. 9268538838. He also pleaded ignorance about mobile no. 80109004181 and stated that he never received any phone call from the said mobile.
29. PW22 Irfan (father of accused Feroz) has also been examined by the prosecution in connection with CDR of mobile phone no. 9654894658. He has stated that he never handed over the said phone to his son Feroz. He turned hostile and was crossexamined by ld. Addl. PP for the State and during his crossexamination by ld. Addl. PP, he has denied the suggestion that he told to the IO that aforesaid SIM no. 9654894658 was being used by his son Feroz. He has also denied having made statement Mark PW22/A to the police.
30. From the evaluation of aforesaid evidence, though it is proved that calls were received at mobile no. 9268538838 at 22:05:58 hours, 22:26:20 hours, 22:34:21 & 22:53:16 on 16/09/2014 from mobile phone no. 9873224089, but neither it has been proved by the users as to who made said calls nor identity of accused Rohit has not been proved on record as the one who made the said call and even PW9 Tarun has pleaded ignorance about the same and has further stated that neither both the accused came to his 'dhaba' nor he had seen any of them prior to the day when his statement before the Court was recorded and has specifically stated that did not see any of them either at his 'dhaba' or on the roof of the building on the date of SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 23 of 25 occurrence i.e. 16/09/2014. PW17 Hari Om (brother of accused Rohit) & PW22 Irfan (father of accused Feroz) have also stated that they were the registered owner of the aforesaid mobile phones and the same were never used by accused Rohit and Feroz. Even if the aforesaid call details record are taken on face value, the same do not seem to be of much relevance to connect accused Rohit with the said calls or his presence. Furthermore the presence of both the accused persons at the spot at the time of incident neither stands proved from eyewitness account nor from CDRs of mobile phone.
31. The weapon of offence i.e. brick was sent to FSL for seeking opinion along with other exhibits. On 05/11/2914, the said pullandas were marked to PW32 Ms. Poonam Sharma, Assistant Director (Biology), FSL Rohini, Delhi. She has examined the said exhibits biologically and serologically. On serological examination, Ex. 3 (brick pieces), Ex. 4 (cotton wool swab) and Ex. 5 (brown gauze cloth piece) were found to contain blood of human origin and Ex. 3 (brick pieces) and Ex. 5 (brown gauze cloth piece) gave "B" blood group. Ex. 4 gave no reaction for blood grouping. For DNA examination, the source of exhibit 3, 4 and 5 were subjected to DNA isolation. However DNA could not be isolated from the source of exhibit 4 (cotton wool swab). DNA was isolated from the source of Ex. 3 & 5 and DNA profile was generated by using AMP FI identifier plus Amplification kit. STR analysis was used for each of the samples. Data was analyzed by using Gene Mapper IDX software. The DNA profiling (STR analysis) performed on the exhibits provided was sufficient to conclude that the DNA profile generated SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 24 of 25 from the source of Ex. 3 (brick piece) was similar with the DNA profile from the source of Ex. 5 (blood sample of deceased). As per case of prosecution, three brick pieces were lying at the spot and same were taken into possession by PW28 Inspector Mukesh Kumar vide memo Ex. PW24/C when he visited the spot after receiving the PCR call and prior to arrest of the accused persons in the present case and it is not the case of prosecution that the abovesaid brick was recovered from the possession or at the instance of accused persons. Hence the FSL report does not connect the accused with the commission of the offence.
32. From the aforesaid discussion, it is clear that prosecution has miserably failed to prove its case beyond reasonable doubt against both the accused regarding the incident qua commission of murder of deceased and also on the point of identity of accused persons. Therefore both the accused persons are acquitted for the offence u/s 302/34 IPC.
33. Both the accused persons are directed to furnish personal bond in the sum of Rs. 25,000/ with one surety each in the like amount in compliance of Section 437A Cr.P.C.
34. File be consigned to Record Room u/s 299 Cr.P.C. qua accused Arif Hussain @ Tatu (since P.O.) and be revived back as and when the said accused is arrested in near future. Digitally signed by ASHUTOSH ASHUTOSH KUMAR Announced in the Open Court (Ashutosh KUMAR Kumar) Date: 2019.06.07 10:39:35 +0530 On 6th of June, 2019 Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi SC No. 57513/2016 FIR no. 552/2014 PS Mahendra Park State Vs Rohit & Ors. Page 25 of 25