Delhi District Court
State vs 1. Ashok Jatav S/O Shri Rishi Pal on 23 April, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 136/10
State Vs 1. Ashok Jatav S/o Shri Rishi Pal
R/o house of Jabir Singh Fauzi,
Subhash Nagar, Near Railway Phatak,
Hapur, District Ghaziabad U.P. (In J.C.)
2. Krishan Kumar Tiwari S/o Shri Vikramdityra
R/o Village Nagpura
PO & PS Simri,
District Buxar, Bihar (In J.C.)
3. Manoj Kumar Chaube
S/o Shri Bal Mukund Chaube
R/o village Nagpura,
PO & PS Simri, District Buxar, Bihar (In J.C.)
4. Mohd. Yamin
S/o Shri Mohd. Kamil Mev
R/o village Daulatpur Kalan,
PS Narsena, District Bulandshahar
FIR No : 385/08
P.S. : Okhla Industrial Areas
U/s. : 302/392/394/120B/34 IPC
DATE OF INSTITUTION : 02.11.2010 (Initial date of
institution 22.12.2008)
JUDGMENT RESERVED ON : 18.04.2012
DATE OF DECISION : 23.04.2012
State vs. Ashok Jatav etc., SC no. 136/10 page no. 1 of 33
JUDGMENT:
1. Prosecution case in brief is that on 04.09.2008 receiving a complaint of theft of container no. YMLU 8016007 carrying spare parts of gas geyser fixed on trailor no. HR 69 2292 at PS OIA an FIR u/s. 407 IPC was registered on 05.09.2008.
2. During investigation, an information vide DD no. 22A was received by SI Kuldeep Singh from SI Arun Dev Nehra from Anti Extortion Cell, Crime Branch, R K Puram that accused Manoj Kumar, Krishan Kumar and Ashok were arrested u/s. 41.1 Cr.P.C. and disclosed to have committed the robbery and murder of Asbab Ali, driver of trailor. Thereafter, SI Kuldeep alongwith Crime Team official and Dinesh Sodhi and accused Manoj Kumar went Pilakhwa, where at instance of accused Manoj Kumar, dead body was recovered from ganda nala, near NH24, village Lakhanpur, P.S. Pilakhwa and same was identified by Dinesh Sodhi.
3. On 06.09.2008 during investigation SI Kuldeep Singh alongwith staff reached crime branch and collected the relevant documents and further interrogated accused Manoj Kumar, Kishan Kumar and Ashok Jatav pursuant to which section 302/34 IPC was added and accused persons were produced before the court and four days PC remand was taken and further investigation was handed over to inspector Kishor Kumar.
4. On 09.09.2008, vide DD no. 40A, it is reported by PS Narsena, Bulandshahar that accused Mohd. Yamin was arrested u/s. 41.1 Cr.P.C. further his production warrants were taken from Patiala House Courts State vs. Ashok Jatav etc., SC no. 136/10 page no. 2 of 33 and during his police remand coaccused Mobina and Taufeeq were tried to be traced but could not be traced. Further the stolen case property seized from accused Yamin was transferred at Delhi and on completion of investigation chargesheet was filed.
5. On committal, accused Ashok Jatav, Manoj Kumar, Kishan Kumar were charge for commission for 302/34 IPC and further u/s. 392/394/120B IPC. Accused Mohd. Yamin was charged u/s. 411 IPC, to which they pleaded not guilty and claimed trial. Prosecution for substantiating charge examined 22 prosecution witnesses. Summary details of their depositions as follows.
Depositions of Public Witnesses
6. PW1 Shri Raja Prasad deposed that he was running a grocery shop and STD booth near ICD Depot, Tuglakabad and he know deceased driver Asbab Ali as he got him the job for driver with Pal Cargo movers transport company and further other drivers viz., Kishan and Manoj also used to come to his shop and on 02.09.2008 he had seen driver Asbab, Kishan,, Ashok and Manoj going in front of his shop at around 4.00 p.m.
7. In cross examination he deposed that said shop belongs to him and 3040 drivers used to come at his shop and his statement was recorded by the IO and he put his signature on the statement but do not remember the exact date. He further deposed that he cannot tell the colour of the clothes of accused persons which they were wearing at State vs. Ashok Jatav etc., SC no. 136/10 page no. 3 of 33 that date. In cross examination on behalf of accused Krishan Kumar stated that deceased Asbab had come to his shop for purchasing on the day of incident at around 10/11.00 a.m., and accused Krishan Kumar also come to his shop for purchasing at around 9.00/10.00 p.m. and at that time he saw accused Krishan Kumar and deceased Asbab were passing in front of his shop and he came to know about the incident after 45 days and had not told the said fact to police or anybody else. He further deposed that police took him for inquiry on the 2nd day after the incident and police had not inquired him anything at his shop but straight away taken him to PS and he went to PS alongwith his uncle and mother. He further deposed that no inquiries were made from his mother and uncle. He further deposed that perhaps his statement is not recorded by the persons who called him for inquiry.
8. PW2 Shri Rajeev Khandelwal deposed that on 02.09.2008 his agent released the container from ICD and handed over to Pal Cargo Movers to deliver the same at his company at Noida but the said container was not delivered till late night of 03.09.2008, therefore, he searched the same but could not traced and filed complaint before the police on 04.09.2008 and on 05.09.2008 he joined the investigation of the case alongwith SI Kuldeep Singh and visited ICD depot for search of container and on 18.09.2008, he received a call from inspector Kishore Kumar that some goods and articles of his container were recovered from the area of PS Narsena, district Bulandshahar, he identified the same and about 2500 gas geysers were received on superdari. State vs. Ashok Jatav etc., SC no. 136/10 page no. 4 of 33
9. PW3 Dinesh Sodhi @ Babloo deposed that on 02.09.2008 Shri Rajeev Khandelwal had booked his trailor from ICD, Tuglakabad to deliver goods at Noida,UP and the trailor was loaded on 02.09.2008 but it did not reach M/s. Durga Industries Noida. Thereafter, he alongwith Rajeev Khandelwal searched the container but that was not traced. He further deposed that he employed Asbab Ali on the introduction of Mr. Raja Prasad who runs the shop at V P Singh camp, Tuglakabad. He further deposed that on 05.09.2008 either in the night or next day morning an information was received from Crime Branch R K Puram which was conveyed to SI Kuldeep. Thereafter, he alongwith SI Kuldeep member of crime team and accused Krishan visited Pilakhwa and reached the near nala, on national highway and identified the dead body of his driver Asbab Ali in the nala and his hands and feet were tied with a cloth. He further deposed that UP police had also reached the spot and dead body was sent to mortuary.
10. In cross examination deposed that he employed Asbab Ali on temporary basis and the goods contained in the container were imported from China but he had not seen the documents and charged Rs. 4,500/ for transportation of the goods. He further deposed that crime branch officials first contacted him and he conveyed the said information to Mr. Rajeev Khandelwal. Thereafter, he was also called at R K Puram office and from there they went to PS Okhla at 9.30/10.00 p.m. on 04.09.2008. Again said that they went to Okhla at 6.30 p.m. and from Okhla to Pilakhwa from 9.30 p.m. to 10.00 p.m. He State vs. Ashok Jatav etc., SC no. 136/10 page no. 5 of 33 further deposed that the crime team officials and Okhla police officials surrounded the nala at Pilakhwa and police shown high beam light to see dead body which was lying in the nala and after identification of dead body UP police also came to the spot. On further examination this witness stated that his truck trailor HR 69 2292 which was on superdari and was stolen on 28.09.2009 and the same is not recovered till date.
Depositions of Police Offcials and Doctors
11. PW4 Ct. Pramod Kumar deposed that on 05.09.2008 he was posted at Anti Extortion cell, R K Puram New Delhi and was with SI Arun Dev Nehra and they received an information regarding robbery of container on the night of 02/03.09. With raiding party they reached at Tpoint, Sangam Vihar at about 4.00 p.m. and some passersby were asked to join the raiding party but all refused. At about 4.30 pm., they proceeded toward V P Singh Camp, PS Pul Prahladpur and on pointing out of secret informer, accused Manoj, Krishan and Ashok apprehended and they disclosed that on the night of 02/03.09.2008 they boarded the container from Tuglakabad near sector 37 and killed driver Asbab who was known to accused Krishan Kumar was thrown into nala near PS Pilakhwa and from there they were taken to Anti Extortion Cell and their disclosure statements were recorded and the facts of the disclosure statements were conveyed to IO at PS Okhla. Thereafter, he alongwith members of crime team, IO PS Okhla, SI Kuldeep and owner of trailor Dinesh Sodhi went to Pilakhwa and State vs. Ashok Jatav etc., SC no. 136/10 page no. 6 of 33 accused Manoj was also with them. He further deposed that accused Manoj identified the place where the dead body was lying and identified the dead body and local police conducted the panchnama of dead body. On 05/06.09.2008 at the instance of accused Manoj, trailor HR 69 2292 was recovered from a place near Hapur.
12. In cross examination deposed that he does not know whether the IO had written the information given by secret informer or not and further do not know the DD entry of departure from Anti Extortion Cell and left the Anti Extortion Cell at around 3.45 p.m. in private vehicle but he do not know the number of that vehicle nor the name of driver and reached the V P Singh camp at around 4.30 p.m. and secret informer was standing across the road when accused was passing and further could not tell which accused was apprehended by him and no writing work was done at the spot. He further deposed that disclosures statement of accused Manoj was recorded first and further cannot tell the time consumed by the IO for recording the statement of all accused persons. He further deposed that he cannot tell when they departed from Pilakhwa but they went in a private vehicle maruti WagonR and he cannot tell the exact position of Pilakhwa from where the dead body was recovered. He further deposed that they reached the spot at night but cannot tell the exact time. He further denied suggestion that accused Manoj was arrested on 04.09.2008 from Hapur. He further deposed that photographs of dead body were taken but he cannot tell the name of photographer. On further cross examination on behalf of State vs. Ashok Jatav etc., SC no. 136/10 page no. 7 of 33 accused Yamin and Ashok Jatav, deposed that they had searched all accused but cannot tell what was recovered from them. He further deposed that there was no blood spot on the dead body and he do not remember the name of place from where the container and trailor were recovered. He further deposed that he do not remember whether any photographs of trailor and container were taken. He further denied the suggestion that accused Ashok Jatav was apprehended from his native village.
13. PW5 SI Mohender Singh depose that on 16.09.2008 a permission was sought from the court to interrogate and arrest of accused Mohd. Yamin pursuant to which his disclosure statement was recorded and his three days PC was obtained and they searched for coaccused but they could not be traced and on 18.09.2008 he alongwith inspector Kishore and other staff went to PS Narsena and from its malkhana 2500 gas geysers were taken into possession.
14. PW6 ASI Shiv Kumar Kaushik registered the FIR on the basis of complaint Ex. PW2/A on 05.09.2008 at around 3.20 p.m.
15. PW7 Dr. K N Tiwari, Sr. Consultant Surgeon, District MMG Hospital, Ghaziabad deposed that on 06.09.2008 he conducted the postmortem on the body of Asbab s/o unknown R/o unknown and the said dead body was sent by SO PS Pilakhwa with Ct. Mahender and Sanjay Singh and opined the cause of death as asphyxia due to strangulation caused by ligature and time since death was about 35 days. He further deposed that there was ligature around neck and both State vs. Ashok Jatav etc., SC no. 136/10 page no. 8 of 33 the wrists were tied with cloth. In cross examination he deposed that he cannot say whether the hands were tied from front or from back and the dead body was photographed before the postmortem as mentioned by the IO in his application dated 06.09.2008. He further deposed that ligature mark was antemortem but he cannot say how much time before death it was caused. He further deposed that in case of strangulation blood is collected in the lungs which makes lungs congested. He further deposed that there were no marks on the wrist of the dead body and viscera was also not sent for chemical examination.
16. PW8 HC Narender deposed that on 06.09.2008, he joined investigation and accompanied SI Kuldeep Singh, HC Virender to the office of Crime Branch at sector 8, R K Puram accused Ashok, Manoj and Krishan were arrested in the present case and from there they went to Patiala House alongwith SI Kuldeep and four days remand of accused were taken and from there accused persons were brought to PS Okhla and put up in the lock up. In cross examination he deposed that they left for R K Puram at around 10/11.00 a.m. in private vehicle but he do not remember the number and model of vehicle.
17. PW9 ASI Arun Dev deposed that on 05.09.2008 he arrested accused Ashok Jatav, Manoj and Krishan on secret information that the accused persons involved in robbery of container and tailer from ICD Depot and would arrive at Pul Prahlad pur. He further deposed that on the same day accused Manoj also pointed out the place from where he State vs. Ashok Jatav etc., SC no. 136/10 page no. 9 of 33 alongwith coaccused thrown dead body in drain near Lakhan village on NH 24 under small bridge. He further deposed that prior to this he also informed SI Kuldeep Singh who alongwith Dinesh Sodhi owner of trailor joined him to the place where the dead body was lying. He further deposed that prior to his he recovered a mobile phone of deceased at the instance of accused Manoj and at the instance of Manoj stolen trailor was recovered from syani road after crossing Dera Kutti. This witness identified the mobile phone which was without the sim card and stated that the same was recovered from the possession of accused Manoj Kumar.
18. In cross examination he deposed that he got the secret information at around 3.00 p.m. He further deposed that secret informer first met with Ct. Pramod and thereafter he met him in his office and secret informer told that the accused persons will come near Pul Prahaldpur near ICD Depot and no exact location was told by secret informer and he alongwith raiding party consisting of HC Ramesh, HC Satpal, HC Hari Om, HC Baney Singh, Ct. Pyare Lal, Ct. Narender, Ct. Pramod and secret informer went to spot in two private cars, one is wagonr and other is Santro and stopped the car near the entry of container depot and apprehended the accused when coming on main road and going towards V P Singh camp on the pointing out of secret informer and he cannot tell which official apprehended which accused. He further deposed that accused persons were brought to crime branch office in their respective cars and their disclosure statements were State vs. Ashok Jatav etc., SC no. 136/10 page no. 10 of 33 recorded at police station and he do not know what was recovered from accused persons on their personal search and accused persons were apprehended around 4.30 p.m. And they remained at the spot for around 2 hours 30 minutes and accused Manoj was taken to place from where dead body was recovered at around 9.30 p.m. On further cross examination on behalf of accused Manoj he deposed secret informer had not told about the description of accused persons and further stated at the time of pointing out secret informer had not told their name but only pointed towards them and at the time of apprehension no public person joined and no information was given to Prahladpur chowki. He further deposed that at spot they prepared arrest memos and personal search memo, and from accused Manoj Chinese phone of the deceased was recovered and the time of recovery of mobile phone it was not having any sim card inside it. He further deposed that he do not remember which officials accompanied him to the spot from where the dead body was recovered.
19. PW10 SI Ved Pal deposed that on 08.09.2008 he was posted at PS Narsena and was on patrolling duty with SI Muzammil Khan, Ct. Zuber Rizvi, Ct. Sachin Sharma, Ct. Amarjeet Singh and at around 6.25 p.m. when they reached near Nehar Pul, Uncha Village one secret informer met and told that one person hiding some property near kabristan and he reached with the team near kabristan and apprehended the accused Yamin who was covering those articles with maize and they recovered about 2500 cover of gas geyser and who on State vs. Ashok Jatav etc., SC no. 136/10 page no. 11 of 33 interrogation told that one Taufiq had brought them from Delhi and Taufiq asked Yamin to buy them for Rs. 1,50,000/ and the same were seized.
20. In cross examination deposed that he reached near Nehar Ka Pul at around 7.00 p.m. and at 7.30 p.m., they reached the spot and they left the jeep around 6070 meters from the spot but he do not remember whether he or any member of raiding party was having weapon at that time. He alongwith all the members of raiding party were in uniform and all the members were having torch. He further deposed that entire case property was covered with bundles of maize plants and spread over 50 square meter area and the hight was about 67 feet and the case property was lying in the corner of kabristan and there was no boundary wall of kabristan. He further deposed that the colour of the case property was grey and wrapped in newspaper like papers. He further deposed that he had not informed the pradhan of the village and the case property was taken to PS in tractor trolly and tractor trolly took several turns in transporting the case property.
21. PW11 SI Parshu Ram arrested accused Mohd. Yamin. PW12 Ct. Tota Ram handed over the 2500 gas geysers to inspector Kishan Kumar on 18.09.2008.
22. PW13 Ct. Amarjeet Singh deposed that on 08.09.2008 when they were on patrolling duty with SI Vedpal Singh, a secret informer came and talked SI Vedpal Singh, thereafter, they took jeep to the kabristan where accused Yamin was apprehended alongwith 2500 geysers. In State vs. Ashok Jatav etc., SC no. 136/10 page no. 12 of 33 cross examination he do not remember the number of official jeep and he was having rifle 303 and there was light when they reached kabristan and everything was visible. He further deposed that they had not given any information to pradhan and there was no boundary at Kabristan and the case property was transferred to PS in his presence at around 7.00 p.m. and was sent to PS in 810 jugaar tractors and he remained at the spot for 4.5 hours and IO had not took any photographs in his presence.
23. PW14 Ct. Pawan Kumar deposed that on 17.09.2008 he was posted at PS OIA and on that day he alongwith inspector Kishan Kumar, Ct. Ram Kishore and accused Yamin went to Bulandshahar and IO moved an application before ACJM for transfer of case property at Delhi. PW15 Ct. Ram Kishore also deposed on the same lines.
24. PW16 Ct. Mahender Singh deposed that on 05.09.2008, he was posted as constable at PS Pilakhwa and at around 11.50 p.m., he received information that SI Kuldeep Singh alongwith accused Manoj Kumar led the police party at NH24 where the accused Manoj Kumar pointed out the place where the dead body of deceased Asbab was found and dead body of Asbab Ali was taken to Ghaziabad but could not able to identify accused Manoj Kumar in court, however on being shown to the witness he correctly identified him. In cross examination he deposed that at abound 10/10.15 p.m. SI Kuldeep reached PS alongwith accused but he do not remember whether IO made any DD entry at PS Pilakhwa and thereafter they reached the spot by TSR and State vs. Ashok Jatav etc., SC no. 136/10 page no. 13 of 33 they all went in one TSR. He further deposed that there were so many people were found at the spot where the dead body was found and there are number of factories near the spot where the labours were working. He further deposed that no site plan of the place from where the dead body was recovered was prepared nor the photographs of dead body were taken. He further deposed that the factories were situated around 200 yards away from the spot and lights were coming from the factory and in the light from factory documents were prepared. He further deposed that dead body was visible from the pulia in the light of the factory.
25. PW17 SI Muzammil Khan deposed that on 08.09.2008, he was patrolling alongwith SI Ved Pal Singh. Ct. Zuber Rizvi, Ct. Sachin, Ct. Amarjeet and Ct./driver Umed Chand and when they reached near nehar pull, Uncha gaon, they met one secret informer who told that one person in kabristan, Daulatpur Kala hiding some stolen articles and on the pointing out of secret informer accused Yamin was apprehended and on searching 2500 geyser boxes were found under makka ka phool and on interrogation he disclosed that the said geysers were bought from one Taufiq who told that he bought it from some kabadi in Delhi. In cross examination he deposed that they left the secret informer about 4050 yards prior to the place of recovery and at that place of recovery there was no one standing prior to their reaching and they apprehended the accused Yamin while he covering up the material with makka ka pulla and the said place was covered in the area of 67 State vs. Ashok Jatav etc., SC no. 136/10 page no. 14 of 33 meters and articles were recovered in a corner from eastern side and there is a basti nearby from which he asked the people to join investigation but everybody refused and the articles were taken from the spot in jugaad vehicle and tractor and there were 23 jugaad vehicle tractor and 34 tractors were involved in the same. He further deposed that three constables were went to call those jugaad vehicle but he do not remember the name of those constables and those jugaad were called from Daulatpur. He further deposed that they had not taken any photographs of the said place and site plan of the said place was prepared by the IO. He further deposed that they had not made inquiry from where the accused has brought those makke ki pulia.
26. PW18 SI Kuldeep Singh deposed that on 05.09.2008 he received a complaint regarding theft of geyser alongwith container and trailor. He further stated that after the registration of FIR he alongwith complainant Rajeev Khandelwal went to ICD Container depot and met Shri Dinesh Sodhi and on inquiry he told that the said container was given for delivery to driver Asbab Ali and driver Asbab was deputed on the request of one Raja Prasad and Raja Prasad stated that he saw driver Asbab Ali alongwith Krishan Kumar, Ashok Jatav and Manoj Kumar at V P Singh camp. He further deposed that he received the message through DD no. 22A that driver of the said container was murdered and accused persons were apprehended by AntiExtortion Cell. Thereafter they alongwith one accused Manoj Kumar reached the spot near Lakhan village near a factory area and found one body State vs. Ashok Jatav etc., SC no. 136/10 page no. 15 of 33 lying there. Thereafter, they reached PS Pilakhwa and disclosed that one dead body was lying within the jurisdiction of PS Pilakhwa, thereafter local police accompanied them to the spot. He further deposed that local police conducted inquest proceedings and they came back to Delhi. On 06.09.2008 they arrested the accused persons at the office of anti extortion cell, thereafter four days PC remand of accused was taken.
27. PW19 SI Bir Lal Yadav deposed that on 05.09.2008 SI Kuldeep Singh reported at PS that they recovered a dead body of Asbab Ali near Pulia and thereafter, he alongwith staff reached the spot and prepared the panchnama of the dead body and also the inquest papers and postmortem of dead body was conducted and his statement was recorded on 25.10.2008. In cross examination he deposed that his statement was recorded by SI Kishore Kumar and staff of Delhi police who came at spot consist of SI Kuldeep Kumar and other staff but he do not know their names and they reached the spot at around 12.40 a.m. and they stayed at ganda nala entire night as there was no arrangement for light and came back to PS around 10.00 a.m. in the morning and he prepared the panchanama around 7.30 a.m. He further deposed that lights of factories were not reaching the ganda nala. He further deposed that SI Kuldeep had not conducted any proceeding in his presence at ganda nala and Si Kuldeep had prepared site plan of ganda nala but they had not taken any photographs of dead body at ganda nala. He further deposed that there were five witnesses of State vs. Ashok Jatav etc., SC no. 136/10 page no. 16 of 33 public made in panchanama and names and addresses of witnesses are mentioned in the panchanama itself. He further deposed that dead body was not wearing any chappal or shoes and it was in very decade state (sadi gali halat). He further deposed that he do not remember whether hands and legs of dead body were in bended state.
28. PW20 Ct. Zuber Rizvi deposed that on 08.09.2008, when he was on patrolling duty with SI Ved Pal and other staff they received secret information and on reaching kabristan they found accused Yamin covering stolen articles with makka ki phuli and he disclosed that he bought these boxes from one Taufiq. In cross examination he deposed that the entire team counted the entire property and remained at kabristan entire night and some persons came from near by houses but they were not joined as witness and articles were taken in tractors and jugaads and they called them on phone.
29. PW21 ACP Kishore Kumar deposed that on 07.09.2008 further investigation of the case was marked to him and he alongwith staff proceeded Hapur for searching other accused persons viz., Momina @ Monu and Shamshad @ Taufiq but they could not be traced and on 09.09.2008, he received information that so many gas geyser kits were recovered from Mohd. Yamin, where he was arrested u/s. 41.1 Cr.P.C. Thereafter, accused Yamin was arrested by him and he disclosed that he purchased those gas geysers kits from Momina and Taufiq and purchased them in the sum of Rs. 1.5 lacs. Thereafter on application , the said property was shifted to Delhi. In cross examination he State vs. Ashok Jatav etc., SC no. 136/10 page no. 17 of 33 deposed that accused Ashok, Manoj and Krishan were on police remand when investigation was handed over to him and he went to search for other accused Mobina @ Monu and Shamshad @ Taufiq on that day to Hapur. He further deposed that he had not mentioned that he went to Hapur alongwith accused.
30. PW22 Dr. Dhruv Sharma examined the blood stained clothes of the deceased and found human blood on the same. But there is no reaction for grouping.
31. All the accused persons denied all the incriminating circumstances put to them in their statement u/s. 313 Cr.P.C. and stated that they are falsely implicated in the present case and not opted to lead any defence evidence.
Material Exhibits
32. Ex. PW2/A is the complaint in writing made by PW2 Shri Rajeev Khandelwal to SHO PS O.I.A. regarding missing of trailor no. HR 69 2292 carrying container YMLU 80160017 alongwith the material i.e, gas geysers. This complaint is lodged vide DD no. 50B at 5.10 p.m. On 04.09.2008 and vide DD no. 11A vide 3.20 p.m. on 05.09.2008. FIR Ex. PW6/A 385/08 u/s. 407 IPC was registered. Ex. PW18/B DD no. 22B dated 05.09.2008 received from SI Arun Nehra from Anti Extortion cell at PS OIA regarding apprehension of accused Manoj, Krishan and Ashok Kumar who disclosed that they have killed the driver of container no HR 69 2292 and thrown his dead body near State vs. Ashok Jatav etc., SC no. 136/10 page no. 18 of 33 Pilakhwa. Ex. PW18/A is the DD no. 11A dated 05.09.2008 recorded at around 7.10 p.m. at Anti Extortion Cell, Crime Branch, R K Puram regarding the apprehension of accused persons on secret information near V P Singh Camp, village Prahladpur. Ex. PW9/A is the seizure memo of mobile phone belonging to deceased Asbab Ali recovered from accused Manoj. Ex. PW3/A is the pointation memo of place of lying of deceased Asbab Ali prepared at the instance of accused Manoj Kumar and dead body is identified by PW3 Dinesh Sodhi. Ex. PW4/A, PW4/B, Ex. PW4/C and Ex. PW5/B are the disclosure statement of accused Ashok Jatav, Manoj Kumar, Krishan Kumar and Mohd . Yamin. Ex. PW8/A, Ex. PW8/B and Ex. PW8/C are the arrest memo of accused Ashok Kumar, Krishan Kumar and Manoj Kumar showing the arrest of the accused from Crime Branch office at around 12 noon on 06.09.2008 by SI Kuldeep Singh. Ex. PW5/A is the arrest memo of accused Mohd. Yamin from Patiala House Courts on 16.09.2008. Ex. PW5/C is the seizure memo of 2500 gas geysers produced by Ct. Tota Ram on 18.09.2008 before IO/Inspector Kishore Kumar. Ex. PW2/D is the seizure memo of documents regarding the gas geysers produced by PW2 Rajeev Khandelwal to IO Krishan Kumar on 20.09.2008. Ex. PW12/A is the DD entry of handing over of 2500 gas geysers to IO on 18.09.2008 from PS Bulandshahar.
33. Ex. PW13/X is the information recorded at police station regarding seizure of the gas geysers recovered from accused Yamin in PS State vs. Ashok Jatav etc., SC no. 136/10 page no. 19 of 33 Narsena. Ex. PW10/A is the seizure memo of gas geysers by SI Ved Pal Singh. Ex. PW10/C is the arrest memo of accused Yamin by SI Ved Pal Singh u/s. 41/102 Cr.P.C. Ex. PW19/A is the DD no. 57 recorded at around 23.50 hours dated 05.09.2008 at PS Pilakhwa with request for necessary proceedings for seizure of the dead body of deceased Asbab Ali found near ganda nala, factory area, village Lakhan. Ex. PW7/A is the postmortem report of deceased Asbab Ali showing the cause of death as asphyxia as a result of strangulation. Ex. PW21/H is the seizure memo of clothes of deceased Asbab Ali. Mark A is the FIR regarding theft of his trailor HR 69 2292.
34. Shri Ramesh Rawat, Ld. counsel for accused persons submitted that the accused persons are falsely implicated in the present case. Ld. counsel for the accused further submitted that prosecution relied upon the testimony of PW1 Raja Prasad over the last seen evidence but this witness has contradicted himself over the fact of seeing the accused persons in the company of deceased Asbab Ali. Ld. counsel for the accused further submitted that this PW stated that accused Manoj, Krishan and Ashok Jatav are all drivers but that is not the case of the prosecution.
35. Ld. counsel for the accused further submitted that accused Manoj, Krishan and Ashok were arrested on secret information by crime branch but no secret information was placed on record neither any public witness was joined at the time of arrest of accused persons. Ld. State vs. Ashok Jatav etc., SC no. 136/10 page no. 20 of 33 counsel for the accused further submitted that as per prosecution only accused Manoj is taken for recovery of dead body of deceased Asbab and trailor. Ld. counsel for the accused further submitted that prosecution has not explained why two other accused were not taken, and this itself created doubts over arrest of all three together. Ld. counsel for the accused further submitted that PW3 Dinesh Sodhi who identified the dead body stated that accused Krishan Kumar accompanied the police officials at the time of recovery of dead body. But as per the testimony of other police officials accused Manoj Kumar accompanied them for recovery of dead body. Ld. counsel for the accused further submitted that truck trailor was recovered on 06.09.2008 at Dera Kutti but no public witness was joined at the time of recovery nor the said information was given to the local police of the area. Ld. counsel for the accused further submitted that prosecution has not explained why the local police of OIA has not conducted the investigation over the recovery of tractor trailor and why only crime branch officials took the accused Manoj for recovery of tractor trailor.
36. Ld. counsel for the accused further submitted that recovery of stolen property i.e, 2500 gas geysers from accused Yamin was recovered from an open place i.e, kabristan and at that time also despite presence of public persons no person was associated with the recovery proceedings. Ld. counsel for the accused further submitted that there is no investigation how accused Yamin brought such a huge quantity at State vs. Ashok Jatav etc., SC no. 136/10 page no. 21 of 33 kabristan. Ld. counsel for the accused further submitted that prosecution miserably failed to prove its case and requested for acquittal of accused persons.
37. Ld. Addl.P.P. on the other hand submitted that accused Manoj Kumar, Krishan Kumar and Ashok Jatav were apprehended together by the police and they were identified by PW1 being seen together with deceased Asbab Ali on the day of incident. Ld. Addl.P.P. further submitted that mobile phone of deceased, dead body of deceased and truck troller were recovered at the instance of accused Manoj Kumar. Ld. Addl.P.P. further submitted that accused Yamin was found in possession of stolen property i.e, gas geysers and had not explained how he came in possession of such a huge quantity. Ld. Addl.P.P. further submitted that prosecution has proved all the circumstances beyond doubt.
38. Arguments heard. Record perused.
39. Prosecution case in brief is that on the night of 02/03.09.2008 deceased Asbab Ali took the trailor no. HR 69 2292 from Tuglakabad ICD on the instructions of PW3 Dinesh Sodhi to deliver at the office of PW2 Rajeev Khandelwal at Noida containing gas geysers and accused Manoj, Krishan and Ashok accompanied him in that truck troller and on the way they strangulated and killed Asbab Ali and thrown his dead body in ganda nala near NH24, village Lakhanpur, Pilakhwa. A complaint of theft of the said trailor alongwith container was lodged by PW2 Rajeev Khandelwal on 04.09.2008 at PS OIA. State vs. Ashok Jatav etc., SC no. 136/10 page no. 22 of 33
40. On secret information on 05.09.2008 regarding robbery of the said container, officials of Anti Extortion Cell, on pointing out of secret informer apprehended accused Krishan, Manoj and Ashok from V P Singh Camp pursuant to which they disclosed that they murdered Asbab Ali and thrown the dead body at Pilakhwa and parked the said container near Hapur. After interrogation the information was also sent to PS OIA and accused persons were arrested at Anti Extortion Cell and their arrest memo and personal search memos were filled up.
41. Thereafter, accused Manoj Kumar was taken by Anti Extortion Cell in the night of 05.09.2008 at ganda nala and SI Kuldeep Singh and PW3 Dinesh Sodhi also accompanied them where accused Manoj Kumar pointed out the lying of dead body of deceased Asbab Ali, also identified by PW3 Dinesh Sodhi. Thereafter, the local police of Pilakhuwa was called, took the dead body in possession and sent it for postmortem and the said trailor was also recovered by SI Arun Nehra at instance of accused Manoj Kumar from Syani Road, near Garh, District Bulandshahar. On 08.09.2008 accused Yamin found in possession of stolen gas geysers, pursuant to which he was arrested.
42. The incriminating circumstances appeared against accused Manoj, Ashok and Krishan that they were arrested on secret information, thereafter they disclosed about the killing of deceased Asbab Ali, further pointing out of dead body of deceased by Manoj Kumar and recovery of said truck trailor at the instance of accused Manoj Kumar and further the recovery of stolen property i.e, gas geysers from State vs. Ashok Jatav etc., SC no. 136/10 page no. 23 of 33 accused Yamin and the last seen evidence that of PW1 Raj Prasad who had seen accused Manoj, Krishan and Ashok Jatav in company of driver Asbab Ali on 02.09.2008 prior to the incident.
43. According to PW4 Ct. Pramod Kumar, the genesis of arrest of accused Manoj, Ashok and Krishan Kumar is that on the basis of one information received at Anti Extortion Cell, R K Puram, SI Arun Dev Nehra (PW9) formed a raiding party and reached at Tpoint, Sangam Vihar. PW9 SI Arun Dev Nehra though has not stated anything about the receiving of any information at Crime Branch office in examinationinchief. However, in cross examination stated that he received secret information around 3.00 p.m. in the office and secret informer first met PW Ct. Pramod Kumar (PW4). But PW4 Ct. Pramod Kumar had not stated anything about meeting of secret informer with him in the office. Further PW4 Ct. Pramod Kumar stated that the raiding party went to the spot but neither PW4 and PW9 in examinationinchief stated that who are other members of raiding party. However, as per Ex. PW18/A the raiding party consist of HC Ramesh, HC Hari Om, HC Baney Singh, Ct. Pyare Lal, Ct. Narender and Ct. Pramod but none of these raiding party members were examined by the IO. Only statement of PW4 and PW9 were recorded with regard to apprehension of accused persons on secret information. Neither PW9 and PW4 had placed the DD entry of secret information on the record. The nonplacement of DD entry in this regard and non recording of statement of other raiding party State vs. Ashok Jatav etc., SC no. 136/10 page no. 24 of 33 members create doubts whether any such information was received at the office of crime branch or whether any raiding party was made.
44. PW9 in examinationinchief not stated that on secret information they reached ICD Depot, Tuglakabad and arrested accused persons. This witness PW9 who is the main witness of arrest of accused persons at first instance in examinationinchief had not disclosed the names of the members of raiding party and how the raiding party was positioned and also not stated whether the secret informer accompanied them.
45. PW9 in cross examination stated that the raiding party stopped their car at the entry of container depot and accused persons were apprehended while coming from main road and going towards V P Singh Camp. PW4 neither in examination in chief nor in cross examination stated that their car was parked at the gate of container depot but stated first they reached Tpoint Sangam Vihar then proceeded to V.P. Singh Camp and arrested the accused persons. Neither PW4 nor PW9 stated that which official apprehended which accused person nor both of these witness could tell the departure entry from crime branch office. PW9 also could not tell what was recovered from which accused. PW9 stated that accused persons were arrested at the spot. However, PW4 stated that no writing work took place at the spot. No arrest memo of accused persons was filed to show that accused persons were arrested by the Crime Branch Officials. None of the witnesses could state the registration number of the cars in which they came to arrest the accused persons. PW4 deposed that State vs. Ashok Jatav etc., SC no. 136/10 page no. 25 of 33 they went to spot in his Wagon R car whereas PW9 stated that one was Wagon R and other was Santro.
46. As per prosecution case one Chinese mobile phone belonging to deceased Asbab Ali was recovered from accused Manoj Kumar. However, PW4 Ct. Pramod Kumar had not stated about the recovery of mobile phone from accused Manoj Kumar. Further there is no connecting evidence that recovered mobile phone belong to deceased Asbab. Thus, these all makes circumstances of arrest of accused Manoj, Ashok and Krishan suspect.
47. According to prosecution, after apprehension all these three accused brought to office of crime branch and their disclosure statements were recorded. Thereafter, PS OIA informed. PW9 has not stated anything in his examination in chief that he informed police of PS OIA regarding the apprehension of accused persons nor the same is stated by PW4. However, the case of the prosecution is that on the evening/night of 05.09.2008 accused Manoj Kumar took them to the ganda nala, in Pilakhwa where the dead body was lying. PW4 Ct. Pramod Kumar stated that he alongwith members of crime team, SI Kuldeep and Dinesh Sodhi (PW3) went to Pilakhwa. PW4 in cross examination could not tell the exact location in Pilakhwa from where the dead body was recovered further could not tell if public persons were present at the time of recovery of dead body and PW4 also could not stated that after how much time local police reached at the spot and further could not even tell the names of local police. PW9 in cross State vs. Ashok Jatav etc., SC no. 136/10 page no. 26 of 33 examination stated that he could not remember which official accompanied him to the spot from where the dead body was recovered and officials of PS OIA alongwith owner of the trailor also reached at the spot from where the dead body was recovered. However, PW4 stated that all officials as well as IO Kuldeep Singh and PW9 accompanied together from Delhi to ganda nala, Pilakhwa for recovery of dead body. PW3 Dinesh Sodhi deposed that he accompanied these officials for recovery of dead body on 05.09.2008 either in the night or next day. Whereas in cross examination this witness stated that they reached the the spot for recovery of dead body at about 9.30 p.m. on 04.09.2008 i.e, one day prior, further PW3 stated that accused Krishan was taken by police for recovery of dead body whereas as per the prosecution case only accused Manoj was taken to the spot for recovery of dead body.
48. PW3 in his cross examination stated that he reached the crime branch office at around 5.00/5.30 p.m. Whereas as per SI Arun Dev Nehra (PW9) accused persons were brought at crime branch office R K Puram after 7.00/7.30 p.m., which also created doubt over apprehension of accused persons in the manner suggested by police.
49. As per Ex. PW4/D the said trailor HR 69 2292 alongwith container was recovered from Syani Road, Near Garh on 06.09.2008 at the instance of accused Manoj Kmar by PW9 SI Arun Dev Nehra in presence of Ct. Pramod Kumr and Narender Kumar (no. 8306) (DAP Crime Branch), but Ct. Narender not examined. PW4 Ct. Pramod State vs. Ashok Jatav etc., SC no. 136/10 page no. 27 of 33 Kumar in examination in chief stated that on the night of 05/06.09.2008 he alongwith SI Arun Dev Nehra (PW9), local police of Okhla and PW3 Dinesh Sodhi owner of the container went to Pilakhwa, near nala and dead body was identified by PW3. Further on 06.09.2008 the truck trailor was recovered near Hapur. However, as per Ex. PW4/A the truck trailor was not recovered from Hapur but from near Garh, District Bulandshahar, Syani Raod on the left side of Dera Kutti. PW9 in examination in chief had not stated that on what date and in what sequence the said trailor was recovered.
50. It appears from testimony of PW4 and PW9 that the said trailor was recovered after identification of dead body at village Pilakhwa on the next date i.e, 06.09.2008. However, PW18 SI Kuldeep Kumar stated that after identification of dead body by PW3 Dinesh Sodhi they all went to the local police station and brought local police to the spot and then they came back to their PS at Delhi and Crime Branch staff went to their office with accused Manoj. On 06.09.2008, he alongwith HC Virender, Ct. Narender and Ct. Manoj went to Crime Branch office and interrogated the accused Manoj Kumar, Krishan Kumar and Ashok Kumar and took the disclosure statements of accused persons and consequently arrested them in the present case and as per arrest memo these accused persons were arrested at 12 noon in crime branch office. However, no disclosure statement is filed on record regarding what is disclosed by accused persons to SI Kuldeep. PW9 also arrested the accused persons but those arrest memos are also not produced. State vs. Ashok Jatav etc., SC no. 136/10 page no. 28 of 33
51. Next pertinent question is that the said trailor was recovered on 06.09.2008 but as per PW18 SI Kuldeep Singh accused Manoj Kumar alongwith Crime Branch staff after recovery of the dead body came back to Delhi and crime branch staff took Manoj Kumar to crime Branch office and he came to local police station and thereafter arrested all accused persons on 06.09.2008 at 12 noon. This statement of PW18 clearly shows that accused Manoj Kumar was not taken to any place near Garh for recovery of trailor by crime branch after the recovery of dead body. However as per Ex. PW4/D the said trailor was recovered from Syani gate, Dera Kutti, near Garh on 06.09.2008. This all makes the recovery of the said trailor at the instance of accused Manoj Kumar suspicious. Further there was no local police associated at the time of recovery of trailor alongwith container neither any photographs of the trailor was taken nor site plan of the place from where trailor recovered was prepared. It is further inconceivable that when the local police of OIA came into picture on 05.09.2008 then how the said trailor was recovered by the crime branch officials leaving aside police of PS OIA.
52. The entire circumstance of recovery of dead body and the trailor as suggested by prosecution is doubtful as PW3 Dinesh Sodhi stated that dead body of deceased was identified by Krishan Kumar and not by accused Manoj Kumar. Further there is no explanation of the police, when all the three accused persons were apprehended together then why only accused Manoj Kumar was taken for recovery of dead body State vs. Ashok Jatav etc., SC no. 136/10 page no. 29 of 33 and truck troller.
53. The prosecution further relied upon the last seen evidence of PW1 Raja Prasad for connecting accused Manoj, Krishan and Ashok with deceased Asbab Ali. PW3 Dinesh Sodhi stated that he employed deceased Asbab Ali on introduction of PW1 Raja Prasad who runs a shop in V P Singh Camp. PW1 Raja in his examination in chief stated that he knew accused Asbab Ali being the driver and also know accused Krishan Kumar Tiwari, Manoj Kumar, Ashok Kumar being drivers and on 02.09.2008 he had seen driver Asbab Ali, Krishan Kumar, Ashok Kumar and Driver Manoj Kumar while they were passing in front of his shop at around 4.00 p.m.
54. This witness PW1 described accused Manoj, Krishan and Ashok Jatav alongwith deceased Asbab Ali as drivers. However neither PW3 or any other witness stated that they were driver in the container depot neither this is the case of the prosecution that accused persons were also drivers in the said depot or cargo office. PW1 in his examination in chief stated that he had seen the accused persons with deceased at around 4.00 p.m. Whereas in cross examination he stated that he saw the deceased with Krishan Kumar in the morning. He further stated in cross examination his statement was not recorded by the police persons who called him in chowki for inquiry and he alongwith his mother and uncle also taken to the police station. Further in cross examination this witness stated that he came to know this incident after 45 days of incident, however in next line stated that police took him to PS on State vs. Ashok Jatav etc., SC no. 136/10 page no. 30 of 33 second day of incident.
55. This witness stated that he had seen the accused persons with the deceased while passing through his shop at 4.00 p.m. It is inconceivable in ordinary course to remember the person who passes through the shop and further there is contradiction in cross examination where he stated that he saw accused Krishan Kumar in the morning with deceased. Further the prosecution even could not prove that these three persons were driver in the area. Further no witness is examined with regard to the fact whether accused persons accompanied the deceased from the ICD depot or they found the deceased on the way. PW1 Raja Prasad being a last seen witness do not in any way appears reliable. Nevertheles this circumstance of last seen evidence do not in any way strengthen the prosecution case.
56. Next circumstance relied by the prosecution is the recovery of gas geysers from accused Yamin, PW10 SI Ved Pal Singh from PS Narsena stated that on 08.09.2008 while on patrolling with SI UT Muzammil Khan (PW17), Ct. Zuber Rizvi (PW20) and Ct. Amarjeet (PW13) at around 6.25 he received a secret information, pursuant to which he reached the kabristan and found accused Yamin covering the gas geysers with maize plant. All these witnesses stated that the said kabristan was a open place and there was local population near by and those persons were also collected at the time of recovery but none of the local people were associated in the recovery. PW8 and PW10, 13, 17, 20 stated that they were on patrolling duty but no such DD in State vs. Ashok Jatav etc., SC no. 136/10 page no. 31 of 33 regard to patrolling filed on record and no site plan or photographs of the place are being taken. Further the stolen articles were removed from that kabristan in tractor or jugaads but no statement of those driver or person or who have given them rent was recorded by the police. PW13 Ct. Amarjeet stated that accused has no concern from the place from where the case property was recovered. It is inconceivable that accused will place such a huge case property consisting 2500 gas geysers at a place where he has no concern. Even not living nearby.
57. PW17 in cross examination stated that site plan of place of recovery was made which is in contradiction with other witnesses who all stated no site plan was made. PW20 Ct. Zuber Rizvi stated that the tractors and jugaads were called on the telephone, whereas PW17 Muzammil Khan stated that three constables went to call the jugaad vehicle at Daulapur. There is inherent deficiencies in recovery of said stolen property as no secret information, no independent witness, no site plan, no photographs were placed on record. Further there is no investigation how and from where the accused Yamin brought this huge stolen property to that kabristan and further why he will bring it to that place when he had nothing to do with that place.
58. On over all appreciation of evidence, the prosecution case is patchy on all accounts that is from receiving of secret information, apprehension of accused persons in pursuance to that, recovery of dead body at the instance of accused Manoj which is contradicted by PW3 who stated State vs. Ashok Jatav etc., SC no. 136/10 page no. 32 of 33 that it was recovered at the instance of accused Krishan Kumar, further why all accused persons were not taken for recovery of dead body. The prosecution could not explain why the truck trolly was not recovered by OIA police. Further there is no information given to the local police from where the said trailor/container was recovered nor any site plan of that place was prepared. The prosecution could not connect the accused Manoj, Krishan and Manoj with accused Yamin. Recovery of gas geysers from the possession of accused Yamin as already discussed also do not appears to be credible and reliable.
59. The burden of proof is on the prosecution to prove the guilt of the accused persons. However, prosecution miserably failed to prove the guilt of the accused persons. Hence accused Ashok, Krishan, Manoj and Mohd. Yamin are acquitted of all charges framed against them. Accused Ashok, Krishan and Manoj are directed to furnish bail bond in terms of section 437 A Cr.P.C. Further the bail bond of accused Mohd. Yamin is converted into bail u/s. 437A Cr.P.C. and shall remain valid till the expiry of six months.
Announced in Open Court
On 23rd April, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State vs. Ashok Jatav etc., SC no. 136/10 page no. 33 of 33