Delhi District Court
State vs . 1. Ashok on 30 April, 2015
IN THE COURT OF SH VIRENDER KUMAR BANSAL :
ADDL. SESSIONS JUDGE: (FTC) (W):DELHI
SESSIONS CASE No. :106/13
ID No. 02401R1044802003
FIR No. : 157/1998
U/s : 302/147/148 IPC
P.S. : Masuri Distt. Ghaziabad
STATE Vs. 1. Ashok
S/o Sh. Jai Prakash
(Proclaimed Offender)
2. Shobha Ram
S/o Sh. Jai Prakash
R/o Village Kuria Garhi,
PS: Masuri, Ghaziabad, U.P.
3. Yogesh
S/o Sh. Jai Prakash
R/o Village Kuria Garhi,
PS: Masuri, Ghaziabad, U.P.
4. Rakesh
S/o Sh. Jai Prakash
R/o Village Kuria Garhi,
PS: Masuri, Ghaziabad, U.P.
5. Rukmesh
S/o Sh. Jai Prakash
R/o Village Kuria Garhi,
PS: Masuri, Ghaziabad, U.P.
Offence complained of : 147/148/149/302/452/506 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 28.08.2009
Date of Judgment : 30.04.2015
FIR No:157/98 State Vs. Ashok etc. Page 1 of 34
J U D G M E N T:
1. On 16.06.1998 at about 6:00 am Tek Chand along with his brothers Charan Singh, Rajbir Singh and other co-villagers namely Kiran Singh S/o Sh. Tejpal, Mukesh Nut s/o Sh. Nahar Singh, Lillu S/o Sh. Pop Singh resident of Village Bhareta, Anil S/o Sh. Ved Parkash, Inderjeet S/o Sh Mohar Singh both resident of Ghaziabad were sitting in the Gher situated at village Kuria Garhi, PS:Masuri, Distt. Ghaziabad. They were writing cards for distribution. In the meanwhile in two cars Ashok Pehlwan, Shobha, Rakesh, Yogesh and Rukamkesh all sons of Sh. Jai Parkash and two unknown persons came there. They all were armed with weapons. Ashok and Rakesh were having rifles and other were having revolvers and tamancha. Ashok said you are our relatives but are helping the murderers of our father. On this Tek Chand and his brother cleared their position and said that there is some miss understanding. Ashok and other persons did not trust them and they started firing indiscriminately to murder them. In this firing Charan Singh, Rajbir Singh and Mukesh Nut died on the spot and all other persons fled away to save their lives. Accused persons fired on them. Kiran Singh also sustained injury in the incident. All the accused persons left while saying that whoever will support their opposite party will face the same FIR No:157/98 State Vs. Ashok etc. Page 2 of 34 consequences. Complaint was made by Sh. Tek Chand in the police station about the incident on the basis of information FIR No.157/98 was registered in the police station. Police arrived on the spot, removed the dead bodies to the hospital where post mortem was conducted. Investigation was carried out but the accused persons could not be arrested. The charge sheet was filed against five accused persons namely Ashok Pehlwan, Rakesh, Rukmesh, Yogesh and Shobha Ram. Identity of the other 2 accused persons could not be established. The above named accused persons also could not be traced and proceedings u/s 82 Cr.P.C were carried out against them. The accused persons were arrested in another murder case. Thereafter they were formally arrested in this case. The accused persons were granted bail by the Hon'ble High Court which was challenged before the Hon'ble High Court and the Hon'ble Supreme Court was pleased to cancel bail. He could not be arrested thereafter. While the investigation was going on accused Ashok made an application to the State on 13.08.2009 accordingly, the case was transferred to CBCID for investigation and thereafter the investigation was carried out by CBCID. CBCID after completion of investigation filed the charge sheet. During the pendency of the case accused Ashok Pehlwan absconded and was declared Proclaimed Offender.
2. All the accused were charged for the offence punishable u/s FIR No:157/98 State Vs. Ashok etc. Page 3 of 34 147/148/302 IPC read with section 149 /452 and 506 IPC by Sh. U.S. Awasthi, Special Judge ESMA/Addl. Sessions Judge, Ghaziabad. Though the charge was framed against all the 5 accused persons but the record reveals that plea of all the accused were not recorded and bear signatures of accused Shobha Ram, Yogesh and Rukmesh. Signatures of Ashok and Rakesh were not there. As lateron Ashok absconded and was declared Proclaimed Offender but trial against Rakesh continued therefore, charge was re-framed on 28.01.2015, all the accused persons pleaded not guilty they also do not wish to recall any witnesses already examined.
3. During the pendency of the proceedings while the evidence of witnesses was being recorded the witnesses moved application before the Supreme Court that they are getting the threats and therefore the Supreme Court was pleased to transfer the case from U.P to Delhi and accordingly, this case came up before this court for trial.
4. Prosecution in order to prove its case examined 26 witnesses.
5. Tek Chand was examined as PW-1. He has supported the case of the prosecution in material parts and specifically deposed that accused persons murdered Charan Singh, Rajbir and Mukesh Nut. Accused Rakesh and Ashok were armed with rifles and other FIR No:157/98 State Vs. Ashok etc. Page 4 of 34 accused were armed with revolvers and Tamancha. He deposed that accused suspected that the complainant party was helping the murderer of their father. The complainant party told the accused persons that they are grand sons of their real uncle and they are not helping the murderer of their father but they did not pay any heed to the same and started firing. In the firing Rajbir, Charan Singh died on the spot and fell down on the cot on which they were sitting. Mukesh gave a lathie blow on the Maruti Car in which accused persons came there, thereafter he was also shot dead. The witness along with other persons i.e. Kiran, Anil, Lillu and Inderjeet fled from the spot in order to save themselves. Kiran also sustained injury in this incident. During cross examination he stated that accused persons came in 2 vehicles and those vehicles were stopped in front of gher on Khadanja. Accused persons fired from a distance of 4 to 6 steps and they fired towards both the cots on which the complainant party was sitting. Rajbir and Charan Singh fell on the cot after being hit by the bullets. Accused persons fired for 10-20 seconds and remained there for about 1-2 minutes. Mukesh was hit with the bullet outside the Gher near the tap. Mukesh was sitting on the same cot on which Rajbir was sitting. He further stated that Mukesh was not having lathi in his hand while he was setting on the cot he lifted the lathi from the Gher. He hit the Maruti Car of accused persons with that Lathi and FIR No:157/98 State Vs. Ashok etc. Page 5 of 34 only thereafter, accused persons fired at him. He stated that he told this fact to the IO that Mukesh lifted the Lathi from Gher but this fact does not found mention in his complaint. He stated that his statement was recorded by CBCID also and he was confronted with his statement recorded by CBCID about picking up lathi from the Gher. He was also confronted with his statement recorded by CBCID where it was mentioned that Ashok, Shobha and Yogesh in conspiracy sent Rakesh and Rukmesh and 6 other persons to their Gher and they committed murder of Rajbir, Charan Singh and Mukesh Nut. He stated that he did not ask police to get Kiran treated. Kiran sustained injury on his arm and he told this fact to the police. He also told the police that Kiran does not want any treatment in hospital but this fact also did not find mention in his statement. He denied the suggestions that at the time of incident he, Anil, Lillu and Inderjeet were not at the spot. He denied the suggestion that at the time of incident accused Ashok, Shobha Ram and Yogesh were lodged in Mujjfarnagar Jail and were not present on the spot. He did not notice the registration number of the car. He stated that Rajbir Singh sustained injury on his shoulder and bullet came out from the side of hip. Charan Singh sustained bullet injury on right side of his chest and bullet came out from the back side. Police also lifted bullets from the spot.
6. Dr. Bhargav was examined as PW-2 he conducted the post FIR No:157/98 State Vs. Ashok etc. Page 6 of 34 mortem on the dead body of Charan Singh. He noticed 2 fire arm injuries on the person of Charan singh, proved the post mortem report as Ex.PW2/क-2. The doctor opined that deceased died due to injuries sustained by fire arm. The clothes found on the dead body i.e. one Tehmat, underwear and one shirt and Kada, were sealed and handed over to the police. This witness also conducted post mortem on the dead body of Rajbir Singh and found 2 fire arm injuries on the body. Doctor opined the cause of death as shock and hemorrhagic as a result of fire arm injury clothes i.e. Tehmat, underwear, shirt and Kada were sealed and handed over to the police. Post mortem report is Ex.PW2/क-3. On the dead body of Mukesh three fire arm injuries were found. Doctor opined the cause of death as shock and hemorrhage due to fire arm injuries. On the dead body one Baniyan, underwear and Kada were found which was sealed and handed over to the police. The post mortem report is Ex.PW2/क-4. The bullets were also recovered from the dead body which were sealed and handed over to the police. Nothing material came on record during cross- examination.
7. SI Mewa Ram was examined as PW-3. He deposed that on 31.07.1998 he was in the patrolling along with police station incharge Sher Bahadur Singh and other police officials and was searching for accused persons. They received secret information FIR No:157/98 State Vs. Ashok etc. Page 7 of 34 that the car No. DL 7C 4976 and the accused involved in the FIR are coming towards the canal. On this they reached near Alipur Tiraha. On seeing the police driver turned the car in the opposite direction and drove in the opposite direction. They chased them but the occupants of the car fled away in the fields leaving the car at Badka Alipur Tiraha. The occupants of the car could not be apprehended. The car was seized vide memo Ex.PW2/क-5. Nothing material came on record during cross examination of this witness.
8. SI Pratap Singh was examined as PW-4. He recorded the FIR on the basis of complaint of Tek Chand written by Nathu Ram and proved the same as Ex.PW2/क-7 & 8.
9. Inderjeet Singh one of the eye witness was examined as PW-5. Tek Chand is his brother-in-law (Jija). Charan Singh and Rajbir Singh were brothers of Tek Chand. He deposed that on 16.06.1998 at about 6:00 am he was present in the Gher of Tek Chand situated in village Kuria Garhi. Tek Chand, Rajbir, Charan Singh, Lillu, Anil, Kiran and Mukesh were also present there they were writing the marriage cards of the daughter of Charan Singh while sitting on the cot. Two Maruti cars stopped at the gate of Gher. 7 persons came out of the car namely Ashok, Shobha, Rakesh, Rukmesh and Yogesh and two other persons all residents of village Kuria Garhi, againsaid five were of village Kuria Garhi FIR No:157/98 State Vs. Ashok etc. Page 8 of 34 and other two persons, he can identify if produced before him. They all were armed with riffles, Tamanchas and revolvers. All accused told the relatives of this witness that they are supporting their enemies on which relatives of this witness told them that they are not supporting them but accused persons did not Trust them and started firing. Rajbir Singh and Charan Singh were hit by bullets and they fell down on the cots. This witness along with others fled away in order to save their lives. Mukesh Nut picked up a danda while fleeing and hit on Maruti Car on which accused persons fired at Mukesh, he fell down on the Khadanja. Kiran also sustained bullet injury. Thereafter, all accused persons ran away in their cars. One of the car was bearing No. DL 7C 4956. Charan Singh, Rajbir Singh and Mukesh died on the spot. He also identified accused persons present in the court. While leaving the spot accused persons were saying if anybody stood witness against them he would face the same consequences. During cross examination he stated that the marriage of daughter of Charan Singh was to be solemnized on 18.06.1998. He was in the village Kuria Garhi for the last 3-4 days. He was doing business at that time and was running a atta chakki (Flour mill) he was having an employee to run that Chakki. Charan Singh was writing cards at that time. Nobody ran with the cards. All the cards were left at the cot. He did not return to the spot after the incident on that day. FIR No:157/98 State Vs. Ashok etc. Page 9 of 34 All the accused persons fired indiscriminately. They fired on the persons who ran from there and thereafter fled away in those cars. He told that he also gave name of Ashok, Rakesh, Rukmesh and Shoba. He denied the suggestion that he gave the name of Rakesh and Rukmesh only to the police. He was confronted with his statement about presence of accused persons on the spot. He denied the suggestion that he had deposed falsely.
10. Inspector Chander Pal Singh was examined as PW-6. He stated that investigation of this case was assigned to him on 24.08.1998. During investigation he collected the file and the exhibits. On 08.01.1999 he recorded the statement of Tek Chand and Nathu Ram. On 10.02.2001 he inspected the scene of crime. Thereafter, he was transferred. He also recorded statement of Lillu and Inderjeet. During cross-examination he stated that Tek Chand did not tell him that Mukesh Nut lifted lathie from the Gher however, he stated that at the time of incident Mukesh Nut came with the lathie and while accused persons were firing on him and his brother Mukesh Nut hit the Maruti car of accused persons with the Lathie on which accused persons fired on him. He stated that Tek Chand told him that accused Ashok, Shobha and Yogesh in conspiracy sent Rakesh and Rukmesh and 6 others and got the offence committed. He also stated that witness Inderjeet told him that in two vehicles Rakesh, Rukmesh along with 5-6 other FIR No:157/98 State Vs. Ashok etc. Page 10 of 34 persons came there. He also stated that Inderjeet also told him that Mukesh Nut lifted danda from Gher and hit on the car of accused persons. He also stated that during investigation he came to know accused Ashok, Shobha and Yogesh were in District Jail Mujaffar Nagar on 14.06.1998 and accused Ashok was released on 23.06.1998 and accused Shobha and Yogesh were released on 26.06.1998.
11. Sh. Vinod Kumar Singh retired SI was examined as PW-7. Investigation after registration of FIR was assigned to him. He reached at the spot along with the staff. He found the dead bodies there and carried out the Panchnama and thereafter got the dead bodies removed for post mortem. Thereafter, he inspected the scene of crime at the instance of Tek Chand and prepared site plan Ex.2/क-9. He seized the cot stained with blood in the presence of witnesses on which Charan Singh was found dead vide memo Ex.PW2/K-10. The blood stained Rope (Baan of the cot) on which Charan Singh was found dead Ex.PW2/K10. Cot on which Rajbir was found dead was seized vide Ex.PW2/क-11. Empty cartrdige of .315 bor, 12 bor and 21RPR vide memo Ex.PW2/क-12 which was found at the spot, shoes and slippers were seized vide memo Ex.PW2/क-13. Thereafter, on 17.06.1998 he recorded statement of Nilu, Anil S/o Sh. Ved Prakash, Inderjeet S/o Sh. Mohar Singh, Kiran Singh S/o Sh. Tej Pal, collected post FIR No:157/98 State Vs. Ashok etc. Page 11 of 34 mortem report of Charan Singh, Rajbir and Mukesh. On 18.06.1998 he searched for accused persons but they could not be traced.
On 02.07.1996 the property of accused persons in Village Kuria Garhi was attached. He identified the case property produced. During cross-examination he stated that after the investigation by the local police, the investigation was carried out by CBCID. He admitted that he had not given the distance between point A to D in Ex.PW2/क-9 (site plan). He also admitted that he had not mentioned anything with respect to circle drawn at point 'I' in Ex.PW2/क-9. He stated that he does not know if accused Ashok, Shobha and Yogesh were sent to Jail on 14.06.1998 u/s 151/107/116 Cr.P.C or that Yogesh and Shobha Ram were released from Jail on 26.06.1998 and Ashok was released from Jail on 23.06.1998. He stated that site plan was prepared at about 11:00 am or 12:00 noon. The dead body of Charan Singh was found on cot-A and of Rajbir on cot-B. The distance between 2 cots was of 6 steps. The body of Mukesh was found lying on the cot at a distance of 25-30 steps from Gher. In the site plan Ex.PW2/क-9 he had not shown that the dead bodies were found on the cot. He also stated that no marriage card was found on the spot. He denied the suggestion that dead body of Mukesh was found in the Veranda of some other person. FIR No:157/98 State Vs. Ashok etc. Page 12 of 34
12. SI Rakam Singh was examined as PW-8. He was working as SI and was under transfer at that tiem. He joined the investigation and in his presence Panchnama regarding dead body of Mukesh was prepared which is Ex.PW2/क-15. He also proved the panchnama of dead body of Rajbir Singh as Ex.PW2/क-16 and of Charan Singh as Ex.PW2/क-17. He stated that at the time of preparing panachnama SI V.K. Singh was also present at the spot. The other documents prepared in this regard are Ex.PW2/क-18 to Ex.PW क-28 including the photographs. The witness stated that deadbody of Mukesh was found in the veranda / Baithak of Tarif Singh, uncle of Mukesh.
13. Ct. Harpal Singh was examined as PW-9. He identified the charge sheet prepared by SI Udai Vir Singh, Inspector Incharge of CBCID and identified his signatures.
14. SI Sher Bahadur Singh was examined as PW-10. He was working as SHO. He stated that on that day he was on patrolling duty alongwith other staff including SI Mewa Ram, Ct. Ram Pal, Ct. Vinod in Govt. Jeep. They received secret information that Maruti Car used in the offence of case FIR No:157/98 are coming from Moorad Nagar, Patri of Canal towards Masuri. On this information he made a Naka bandi at Badka pul. At about 9 pm the noticed a car but on seeing the police picket driver turned the car and drove in opposite direction. At Badka Pul, Alipor, Tiraha FIR No:157/98 State Vs. Ashok etc. Page 13 of 34 the occupants of the car left the car and fled away. The car was seized vide Ex.PW2/क-5. During cross-examination nothing material came on record.
15. Inspector Yashvir Singh was examined as PW-11. On 27.12.2001 the investigation of the case was handed over to him. On 26.03.2002 the investigation was transferred to Inspector D.P. Singh of CBCID. During this period no investigation was carried out by Inspector Yashvir Singh.
16. Deputy S.P. Rajbir Singh was examined as PW-12. On 06.04.2002 he was posted in CBCID, Sector Meerut as Inspector. The investigation was assigned to him on 06.04.2002 but he also did not carry out any investigation in this case.
17. Deputy S.P. Yogender Singh was examined as PW-13. On 30.04.2002 the investigation was assigned to him. During investigation he visited Masuri police station, contacted Manoj, Kundan, Ram Karan, Pappu, Kiran, SI Mewa Lal Bharti, Ct. Nepal Singh, HC Pratap Singh made inquiries from them and recorded their statements u/s 161 Cr.PC. He also recorded the statement of Sh. Anand Kumar Dy. Jailor Mujjafar Nagar u/s 161 Cr.P.C on 27.05.2002 and of Yasin s/o Sh. Abdul Hamid. On 11.06.2002 he recorded statement of one Yogesh Kumar. On 12.06.2002 he recorded the statement of Sh. R.K. Juneja. Thereafter, he was transferred. During cross-examination he deposed that he came FIR No:157/98 State Vs. Ashok etc. Page 14 of 34 to know that accused Ashok, Shobha Ram and Yogesh were lodged in district jail Mujjafar Nagar. He further deposed that he is not sure if they were detained in jail from the period from 14.06.1998 to 23.06.1998. He verified this fact from the jail officials of Mujjafar Nagar. He did not inquire from the complainant about this fact. Lateron an application for recalling PW-13 was moved by the prosecution that was allowed and Sh. Yogender Singh was recalled. He deposed that on 27.05.2002 he visited District Jail Mujjafar Nagar and made inquiries from Superindent Jail Mujjafar Nagar about the record of Ashok, Shobha Ram and Yogesh. He made a written request in this regard copy of which is proved as Ex.PW13/X-1, he collected the photocopies of the record of persons lodged in the Mujjafar Nagar Jail i.e. history tickets of Ashok, Yogesh and Shobha the same are Ex.PW13/X-2, X-3 and X-4, he also collected the attested copies of the entries and release register maintained in Mujjafar Nagar Jail. In this register at sl.no.3048 name of Yogesh s/o Jai Parkash is entered. At sl. no.3049 name of Ashok S/o Jai Parkash is entered and at sl. no.3050 name of Shobha Ram s/o Jai Parkash is entered the entry date is 14.06.1998 and the release date of Yogesh is of 23.06.1998 and of remaining two is 27.06.1998. The certified copy is Ex.PW13/X5 running into 4 pages. He also made inquiries in the court of Ld. SDM but no file was found. During FIR No:157/98 State Vs. Ashok etc. Page 15 of 34 cross-examination he stated that SI Shyam Bir filed the kalandra u/s 107/151 Cr.P.C in the court of SDM. This witness did not make any inquiry from SI Shyam Bir till the investigation remained with him. He did not get the thumb impression of accused persons tallied with the same with the thumb impression available in the jail record. After he prima facie reached the conclusion that it is a concocted story and a case of fake arrest. This witness specifically stated, "I am not sure that the case of arrest of accused Ashok, Yogesh and Shobha u/s 107/151 Cr.PC at PS:
Chappar was a case of fake arrest and that is why I did not make complaint to senior officer against SI Shyambir.
18. Sh. Brijesh was examined as PW-14. He identified the dead bodies of Charan Singh and Rajbir Singh. He identified his signatures on the Panchnama's ExPW14/A and Ex.PW14/B.
19. Sh. Kiran Singh was examined as PW-15. He identified dead body of his brother Mukesh and identified his signatures on Panchnama Ex.PW15/A.
20. Sh. Ravinder Kumar Juneja was examined as PW16. He deposed that vehicle No. DL 7C 4956 was registered in the name of his brother Prem Sagar Juneja. His brother expired in January 2013. He stated that perhaps in the year 1997 or 1998 his brother had gone to Delhi in connection with purchase of plot. When he was going to see that plot the vehicle got punctured on the way FIR No:157/98 State Vs. Ashok etc. Page 16 of 34 and he left the vehicle there itself. On the next day the driver was sent to bring the aforesaid vehicle but the driver informed that the vehicle was taken to some other place. The vehicle was recovered after one year from Masuri Gaziabad. The witness was cross-examined by the Ld. APP. During cross-examination he stated that his brother had gone along with Ashok Kumar to see the plot. He does not remember if the date of visit was 18.07.1997.
He admitted that on the next day when driver went to bring the vehicle Ashok was took the vehicle saying that his father and brother have been murdered and he had to go to trans Hindon and he would return the vehicle lateron. He admitted that his brother gave complaint at Mayur Vihar and Trilok Puri regarding missing of aforesaid vehicle. During cross-examination he stated that he does not know Ashok he has never seen his house or any person by the name of Ashok.
21. Ct. Omvrat was examined as PW-17. On the directions of Sh. V.K. Singh he removed the dead bodies from Kuria Garhi to mortuary near Hindon river. He deposited the dead bodies in the mortuary. Post mortem was conducted and thereafter dead bodies were handed over to the relatives.
22. Sh. Ramesh was examined as PW-18. In his presence the proceedings of attachment of the properties of accused persons was carried out by the police.
FIR No:157/98 State Vs. Ashok etc. Page 17 of 34
23. Sh. Irfan Tyagi was examined as PW-19. He deposed that he was inquired by the police regarding residence of Ashraf and Asif and he stated that they do not reside in the locality. During cross-examination he stated that population of ward No.5 Swar panchayat is approximately about 25,000 to 30,000. There are land owner and tenants as well. He stated that according to his knowledge there was no owner or tenant in the aforesaid ward with the name of Ashraf and Asif. He stated that no body informs him while keeping a tenant. He stated that he cannot say if there was any tenant by the name of Ashraf and Asif.
24. Sh. Manoj was examined as PW-20. He identified his signatures on the Panchama Ex.PW14/A regarding the sealing of the dead bodies of Charan Singh and Rajbir.
25. Kundan was examined as PW-21 he is also a witness to the panchnama of dead bodies.
26. Ram Karan was also examined as PW-22. He is also a witness to panchanama of dead body.
27. Pappu was examined as PW-23. He is a witness to panchanam of dead body of his brother Mukesh. The witness was not able to identify his signature on the panchnama. He was declared hostile but still he was not able to identify his signatures.
28. Ct. Subahsh Chand Tyagi was examined as PW-24. He deposed that on 14.06.1998 he along with SI Shyam Bir Singh FIR No:157/98 State Vs. Ashok etc. Page 18 of 34 was present at the gate of police station Chappar, Mujjafar Nagar for checking the vehicles. They came to know that there is a gathering of persons in front of Nilu barber. He along with SI Shyam Bir Singh reached there. They came to know that Asif and Ashraf both residents of Tyagi Lok, Sarvat, Mujjafar Nagar and Yogesh, Shobha Ram and Ashok were altercating with each other. Asif and Ashraf were demanding an amount of Rs.9,000/- with respect to the sale of buffalow but Yogesh, Shobha Ram and Ashok were abusing them and saying that they had already made the payment. This witness along with SI Shyam Bir Singh tried to pacify them but of no avail. Both the parties were becoming aggressive and disturbing the peace and as well as law and order. Having found on other option they were arrested at about 9:30 am u/s 151/107/116 Cr.PC and were brought to the police station. DD No.15 was recorded. He proved the copy of the DD No.15 as Ex.PW24/A. He identified accused Shobha Ram and accused Yogesh. No question was put to this witness during cross examination .
29. SI Shyam Bir Singh was examined as PW-25. He also corroborated the testimony of PW-24. He also identified accused Yogesh and Shobha Ram. During cross-examination he stated that accused Yogesh and Shobha Ram were sent to jail along with two other persons on 14.06.1998.
FIR No:157/98 State Vs. Ashok etc. Page 19 of 34
30. Sh. Nathu Ram was examined as PW-26. He wrote the complaint of Sh. Tek Chand in verbatim which was addressed to SHO PS:Masuri Janpath, Ghaziabad. He stated that the complaint exhibit K is in his handwriting and he also identified his signatures at point X and of Tek Chand at point Y. Nothing material came on record during his cross-examination. Thereafter prosecution evidence was closed and the statements of accused persons were recorded u/s 313 Cr.PC.
31. Prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.P.C wherein they denied the entire evidence. Shobha and Yogesh claimed that they were lodged in Ghaziabad Jail at the relevant time. Accused persons wished to lead evidence in their defence and examined Anand Kumar Shukla, Dy. JaIlor, Sitapur as DW-1. He proved the document Ex.PW1/A, the certified copy which he issued to the IO during investigation. He stated that this documents was prepared by him from the original. According to this document the accused persons were sent to Jail on 14.06.1998. he also proved the documents Ex.PW13/X5 according to these documents Ashok S/o Sh. Jai Prakash, Yogesh S/o sh. Jai Prakash and Shoba Ram S/o Sh. Jai Prakash all residents of Village Kuria Garhi, PS: Masuri Distt. Ghaziabad were taken in Jail on 14.06.1998 and entries in this regard were made at sl.no.3049, 3048 and 3050 respectively. FIR No:157/98 State Vs. Ashok etc. Page 20 of 34 During cross-examination he stated that the original documents were not prepared in his presence and the thumb impression were not taken in his presence.
32. Mijazi Lal, District Jailor, Mujaffar Nagar Jail was examined as DW-2. He proved the original custody warrants, release warrants and personal bonds of accused Yogesh, Ashok and Shobha Ram as Ex.DW2/A to Ex.DW2/H.
33. Retired Jailor Jaswant Singh was examined as DW-3. He identified the handwriting of Dy. Jailor Sh. Satender Kumar on Ex.DW1/A and Ex.PW13/X5. According to him the accused persons were taken in jail on 14.06.1998. The prisoners at sl.no.3048, 3050 were released on 26.06.1998. The prisoner at sl.no.3049 was released on 23.06.1998. He also obtained signatures of prisoners on the personal bond and attested the personal bond being jailor and identified his signatures on Ex.DW2/A to Ex.DW2/H.
34. The defence also moved application u/s 311 Cr.PC to summon Sh. Azad Kumar, Deputy Jailor from Sitapur. On 14.10.2014 application was allowed but thereafter the defence closed the evidence without examining that witness as he could not be served. Thereafter, the case was fixed for arguments.
35. I have heard the Ld. Addl. PP for the State, Ld. Counsel for complainant side, Ld. Defence counsel and perused the record. FIR No:157/98 State Vs. Ashok etc. Page 21 of 34
36. Ld. APP for the State submitted that the present case is based upon the ocular evidence. On 16.06.1998 three persons were murdered at village Kuria Garhi, Masuri, Ghaziabad. At the relevant time i.e. at about 6 am Tek Chand eye witness PW-1 along with his brothers Charan Singh (deceased), Rajbir(deceased) and other person namely Mukesh (deceased) Kiran Anil, Lillu and Inderjeet (PW-5) were sitting on the cots in the Gher in village Kuria Garhi and were writing on the marriage cards for invitation as daughter of Charan Singh was going to be marriaged on 18.06.1998 as has come in the testimony of Inderjeet. Ld. APP submitted that at that time accused persons along with 2 other persons came in Maruti Car one of which was bearing registration No.DL7C4956. The accused persons were having this mis conception that Tek Chand and his brothers were assisting the murders of their father i.e. Jai Parkash. Tek Chand and his brothers tried their best to tell them that they are not doing so and that they have also no intention to do so but they started firing indiscriminately. Charan Singh and Rajbir sustained two bullet injuries each and died on the spot. The other persons started fleeing. In the process Kiran also sustained injury on his arm. Mukesh in the process hit on the car of accused persons with danda. Accused persons fired at him and he sustained 3 bullet injuries and died. Ld. APP submitted that post mortem has FIR No:157/98 State Vs. Ashok etc. Page 22 of 34 been proved on record as Ex.PW2/क-2, क-3, & क-4. The doctor who conducted the post mortem was examined as PW-2. Doctor has clearly opined that all the 3 persons Rajbir, Charan Singh and Mukesh died due to shock and hemorrhagic due to fire arm injuries.
37. The eye witness complainant Tek Chand was examined as PW-1. He has fully supported the prosecution case and also identified all the accused persons. It is pertinent to mention here that there was no rivalry between accused persons and deceased instead of they stood surety for them in other cases and they are also related to each other and hence there are no chance of wrong identification and it was also day time with clear visibility. The accused persons are grand sons of real uncle of complainant and hence, there is no possibility of false implication of the accused persons being close relative. Ld. APP submitted that PW-1 not only identified them but also stated that they fired on them indiscriminately and caused death of Rajbir and Charan Singh and also of Mukesh Nut, because Mukesh Nut while fleeing from the spot and hit Maruti Car with danda and only thereafter they fired on him.
38. Ld. APP submitted that the other eye witness Inderjeet has been examined as PW-5. He has also fully corroborated the testimony of PW-1. He identified all the accused persons and FIR No:157/98 State Vs. Ashok etc. Page 23 of 34 specifically stated that all the accused persons fired indiscriminately and caused death of Rajbir, Charan Singh and Mukesh. Ld. APP submitted that as both the witnesses have stood to the test of cross-examination, There is no major contradictions in their testimony. Their testimonies are corroborated by scientific evidence i.e. post mortem reports Ex.PW2/क-2, क-3 & क-4. According to these post mortem reports the deceased died due to fire arm injuries as deposed by PW-1 & PW-5. Ld. Addl. PP submitted that prosecution has discharged its onus & proved beyond doubt the guilt of accused person that they formed the unlawful assembly, they were armed with weapons, caused murder of Rajbir, Charan Singh & Mukesh nut and also extended threats. It is prayed that they all be held guilty.
39. Ld. Defence counsel submitted that in this case accused Ashok, Yogesh and Shobha Ram were not present at the spot and infact the three were lodged in the jail. This fact is also deposed by the prosecution witness themselves i.e. PW-13 Deputy S.P. Sh. Yogwender Singh who stated that he verified from the jail official of Mujjafar Nagar Jail that accused Ashok ,Shobha and Yogesh were lodged in Mujjafar Nagar Jail and he collected the record of persons lodged in the Mujjafar Nagar Jail. History tickets of accused Yogesh, Shobha and Ashok proved as Ex.PW13/H to ExPW13/X3 and Ex.PW13/X4. According to these documents FIR No:157/98 State Vs. Ashok etc. Page 24 of 34 accused Yogesh was taken in Mujjafar Nagar Jail against ticket No.3048 dt. 14.06.1998 and was released on 26.06.1998. Accused Ashok was taken in Jail against entry No.3049 on 14.06.1998 and was released on 23.06.1998. Accused Shobha Ram was taken in Jail against entry at sl. no.3050 on 14.06.1998 and was released from jail on 26.06.1998. Ld. Counsel submits that as they were in judicial custody on 16.06.1998 therefore it is not possible that they have committed the offence. This fact also reflects that the witness have deposed falsely with respect to them. The fact that they were apprehended u/s 107/151 Cr.P.C is further supported testimony of PW-24 and PW-25. PW-24 is Ct. Subhash Chand, PW-24 proved the DD No.15 copy of which is Ex.PW24/A. DD is dt.14.06.1998 this witness has also identified accused Shobha Ram and Yogesh present in the court. There is no cross examination by the prosecution in this regard and the defence has also not put any question to him.
40. SI Shyambir also deposed on the same lines that accused Yogesh Shobha Ram and Ashok were arrested by him on 14.06.1998 along with two other persons who were sent to Jail but he does not know about their date of release. This witness has also identified accused Yogesh and Shobha Ram. Ld. Counsel submits that besides that defence has examined retired Dy. Jailor Sh. Jaswant Singh as DW-3 and he proved the warrants and the FIR No:157/98 State Vs. Ashok etc. Page 25 of 34 personal bond of accused persons according to which they were released on 26.06.1998 and 23.06.1998. The record clearly shows that they were taken in on 14.06.1998. Under the circumstances it is clear that the witnesses have deposed falsely and their testimony are doubtful. Ld. Defence counsel submitted that there is no corroboration to their testimonies. The other witnesses namely Lillu, injured Kiran and Anil had not been examined by the prosecution which again creates doubt about the truthfulness of the story. Ld. Counsel submits that there is no substantial evidence to prove the case in this regard such as recovery of weapon of offence or any other evidence.
41. Ld. Counsel submitted that under the circumstances benefit be given to accused persons and they be acquitted.
42. Ld. APP submitted that in the present case so far as plea of alibi is concerned that has not been established. The documents which has been placed on record does not prove the plea of alibi has to be proved beyond doubt wherever it is taken.
43. Ld. APP submits that it has come in the testimony of PW-13 that the plea of alibi taken is wrong as the other person with whom allegedly the incident had taken place never existed therefore he was of the opinion infact no such incident has ever taken place and they were not sent to J/C. Ld. APP submits that it shows that the plea of alibi is not tenable. Ld. APP submits that maxim falsus FIR No:157/98 State Vs. Ashok etc. Page 26 of 34 in UNO falsus in omnibus is not applicable in India and is not a sound rule of law and not a rule of practice. Ld. APP relied upon the judgment cited as Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (SC), 2011 CrLJ 705. In this case the Supreme Court held that:
"While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
43.1 Ld. APP also relied upon the Judgment cited as Prem Singh & Ors. v. State of Haryana, (2009) 14 SCC 494, wherein the Supreme Court clearly held as under :
"It is now a well-settled principle of law that the doctrine "falsus in uno, falsus in omnibus" has no application in India."
43.2 Ld. APP also relied upon the judgment cited as Moniruddin Ahmed @ Lalu Dealer v. State of West Bengal (SC), 2010 CrLJ 3448, wherein the Supreme Court held that:
"It is basic law that prosecution is to prove that the accused was present at the scene and had participated in the crime. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. However, once the prosecution succeeds in discharging its burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with certainty so as to exclude the possibility of his presence at the place of occurrence. It is also settled that when the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. In the case on hand, we have already noted the absolute evidence FIR No:157/98 State Vs. Ashok etc. Page 27 of 34 indicating the presence of Lalu Dealer at the scene of occurrence. He was not only at the spot but also caused the death of Abdul Hasib by a fatal blow with spear. As rightly observed by the High Court, the stand taken by the defence witnesses is unacceptable."
43.3 Ld. APP also relied upon the Judgment cited as Ram Bali v. State of U.P., (SC) 2004 CrLJ 2490 wherein the Supreme Court has held that:
"The plea relating to alleged absence was examined by the trial Court and the High Court. It was noticed that no material was produced to show that at the point of time, when the occurrence took place, accused-appellant was present in the jail for the purpose of identification. We find no infirmity in the conclusions of the Courts below in rejecting the plea of alibi."
44. Ld. APP submits that in view of settled law and particularly when witnesses are closely related to each other and they are also related to the accused persons there is no chance of any false implication and prayed that reliance be placed on their testimony and accused persons be held guilty.
45. After hearing the arguments and going through the record I found that there are two witnesses i.e. PW-1 and PW-5 according to them all the five accused along with two more accused came there in two Maruti cars. They suspected that PW-1 and his brothers were supporting and assisting the murders of their father. Though, Tek Chand and his brothers tried to explain that they are not supporting them but they did not give any heed and fired indiscriminately. It has been found during investigation and as deposed by PW-24 and PW-25 that accused Ashok, Yogesh and Shobha Ram were arrested in DD No.15 dt. 14.06.1998 in case FIR No:157/98 State Vs. Ashok etc. Page 28 of 34 u/s 107/15/161 Cr.PC and sere sent to Mujjafar Nagar Jail. The Jail record has been placed on record by PW-13 and also by defence witnesses particularly DW-3 the then Jailor of Mujjafar Nagar Jail. According to them accused Ashok, Shobha Ram and Yogesh were lodged in the jail on 14.06.1998. Accused Ashok was released on 23.06.1998 and other 2-3 released on 26.06.1998. Yogesh and Shobha Ram have been identified by PW-24 and PW25 as the same persons who were arrested on 14.6.1998. Ashok could not be identified as he was declared proclaimed offender and was not present in the court. From this it is clear that these two accused persons were not present at the spot. Though accused persons has also taken plea of alibi but this evidence has been brought on record by prosecution itself by examining PW-24 and PW-25 that accused Ashok, Shobha Ram and Yogesh were arrested in DD No.15 dt. 14.06.1998 PS:
Chappar and were sent to Mujjafar Nagar Jail and according to record they were released from there on 23.06.1998 and 26.06.1998. it is also pertinent to mention here that testimony of PW-24 and PW-25 remained unchallenged and prosecution has not put any question to them in this regard. Therefore, it is also the case of prosecution that they were arrested on 14.06.1998.
PW-13 himself stated that he verified from the Mujjafar Nagar Jail in this regard but he did not believe it. The reason given is that the FIR No:157/98 State Vs. Ashok etc. Page 29 of 34 other 2 accused persons with whom allegedly accused Ashok, Yogesh and Shobha were not available at that address. But no such evidence has been brought on record that the persons with whom the accused had quarrel on 14.06.1998 were not residing at available address. Even otherwise this evidence is contradicting to the testimony of PW-25 who stated that he arrested that persons also. Keeping in view these facts and that accused persons has also taken plea of alibi and it is also case of prosecution that they were arrested on 14.06.1998 in DD No.15 dated 14.06.1998 PS:Chhappar in my opinion so far as accused Yogesh and Shobha are concerned they were not present at the spot on 16.06.1998. It is also important to note that according to by PW-7 witnesses PW-1 and PW-5 told him that accused Ashok, Yogesh and Shobha hatched the conspiracy and pursuance to that conspiracy they have sent Rakesh and Rukmesh along with other six persons and they committed murder. PW-1 and PW-5 were confronted with these statement and they stated that they had not made any such statement. Though PW-7 stated that this statement was given by them. This again shows that witnesses have improved upon their statement. The Supreme Court in case Bhagwan Dass v State of Haryana, AIR 1966 SC 2928 has held that:
"One other aspect which is required to be noted is that the doctor who had conducted the post mortem examination has FIR No:157/98 State Vs. Ashok etc. Page 30 of 34 stated that he did it at 9 A.M. on 18.7.1978 and that probable time between the death and the post mortem examination was between 24 and 48 hours. In cross-examination he stated that it was not possible for him to fix the nearest point of time when the deceased had died. Therefore, according to the medical evidence death of Shanno Devi could have taken place between 9 A.M. on 16.7.1978 and 9 A.M. of 17.7.1978. When he examined the dead body he found that rigor mortis was absence and that in summer rigor mortis usually passes off in 36 hours after death of North India. In view of this medical evidence no define conclusion could have been drawn that Shanno Devi died during that night at about 2.00 A.M and not earlier or later. On careful scrutiny of the evidence we find there are various missing links in the chain of circumstances and on the basis of the evidence it cannot be said that the appellant and the appellant alone had caused the death of Shanno Devi if it is believed that the appellant had a strong motive to get rid of her. It was the prosecution case that not only the appellant but Rajinder and the parents of the appellant were also ill-treating Shanno Devi and wanted to get rid of her. The allegation was that at the instigation of the parents and with the help of his brother Rajinder, the appellant had caused the death of his wife. We are therefore of the opinion that the High Court committed a grave error in coming to the conclusion on the basis of such insufficient evidence that it was the appellant and appellant alone who caused the death of Shanno Devi.
We, therefore, allow this appeal, set aside his conviction under Section 302 Indian Penal Code and acquit him. The appellant is on bail and, therefore, his bail bonds are discharged."
The supreme Court did not rely upon the testimony of the witness as the witness made improvement on most vital aspect which made presence of the accused at place of incident doubtful, as in the present case.
46. In this case Kiran also sustained injury with fire arm as deposed by PW-1 & PW-5 but there is no record that Kiran sustained injury. There is no medical evidence on record in this regard. There are two more eye witnesses Anil and Lillu but prosecution has not examined Lillu, Anil and Kiran for the reasons best known to them. There is no recovery of weapon of offence to link the accused persons with the commission of offence i.e. FIR No:157/98 State Vs. Ashok etc. Page 31 of 34 bullets recovered from bodies of deceased were fired from fire arm. In the absence of any such evidence the only evidence available on record is testimony of PW-1 and PW-5. It has come on record that they have deposed falsely in respect of accused Ashok, Shobha Ram and Yogesh. The other eye witnesses i.e. injured Kiran, Lillu and Anil have not been examined which again creates doubt about the truthfulness of the story of the prosecution. It is important to note here that Kiran allegdly sustained fire arm injury in the incident, therefore, his examination was all the more important. The other two persons namely Lillu & Anil were also sitting on the cots along with PW-1, PW-5 & the deceased therefore they were also very important witness. No doubt it is not the quantity of evidence which matters but it is the quality. But in the present case where prosecution itself establish that PW-1 & PW-5 have deposed falsely about presence of Yogesh and Shobha on the spot and their testimony becomes doubtful the prosecution should have examined the other witnesses also namely Lillu, Kiran & Anil. Under the circumstances and keeping in view these facts in my opinion it will not be safe to rely upon the testimony of these two witnesses and convict the accused persons. Therefore, giving the benefit of doubt I acquit accused persons for the offence u/s 147/148/302 IPC r/w section 149/452 and 506 IPC. Their bail bonds are FIR No:157/98 State Vs. Ashok etc. Page 32 of 34 accepted U/s 437 (A) IPC for the period of six months. File be consigned to record room. File/case be revived as and when accused Ashok is apprehended/arrested.
Announced in the open court
today on 30.04.2015 (VIRENDER KUMAR BANSAL)
ASJ/ FTC (WEST)
TIS HAZARI, DELHI
FIR No:157/98 State Vs. Ashok etc. Page 33 of 34
30.04.2015
Present: Sh. Virender Singh, Addl. PP for the State.
Accused Ashok is already P.O. Remaining four accused produced from J/C from Dhasna Jail.
Vide separate Judgment announced today accused persons Yogesh, Shobha Ram, Rakesh and Rukmesh are acquitted for the offence u/s 147/148/302 IPC r/w section 149/452 and 506 IPC. The accused persons are directed to furnish Personal bond and surety bond in the sum of Rs.10,000/- each for a period of six months U/s 437 (A) IPC. Bail bonds of all four accused persons furnished, accepted.
File be consigned to record room. File/case be revived as and when accused Ashok Kumar(P.O) is apprehended/ arrested.
(VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI FIR No:157/98 State Vs. Ashok etc. Page 34 of 34