Delhi District Court
Fir No.248/11 PsNew Usmanpur State vs . Mohan Nepali & Ors. Page No.1/24 on 2 November, 2018
IN THE COURT OF MS. SAVITRI
ADDITIONAL SESSIONS JUDGE-03
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 248/2011
Under Section : 302/120B/201/34/174A IPC
Police Station : New Usman Pur
Sessions Case No : 419/18
Unique I.D. No. : 02402RO025662018
STATE
VERSUS
1. Vijay @ Mota Saleem S/o Sh. Ram Chander
R/O H. No. A-667, J.J. Colony, Bawana, Delhi.
at present H.No. C-138, Gali no.20, Khajuri Khas, Delhi.
2. Mohan @ Nepali S/o Sh. Puran Singh
R/o H.No.18, Gali no.12, Block A-2, West Sant nagar, Burari, Delhi.
..... Accused persons
Name and particulars of : SI Amit Kumar
complainant
Date of Institution : 12.01.2015
Date of Committal : 29.06.2015
Date of receiving in this Court : 06.07.2015
Date of reserving judgment : 10.10.2018
Date of pronouncement : 25.10.2018
Decision : Acquittal u/s.302/120B/149 IPC
and conviction u/s. 174A IPC
J U D G M E N T:
1. The present FIR for murder of deceased Joginder was registered in the intervening night of 08/09.07.2011. During the investigation conducted by the police the following facts emerged:
FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.1/24i) That deceased was an auto driver and also doing black of cinema tickets at Liberty Cinema Karol Bagh in partnership with one Shyam Kishore Tiwari and one of the accused namely Mukesh Tiwari. Around 20 days before the incident dated 08.07.2011 when the deceased was attacked by some unknown assailants, which resulted in his death on 09.07.2011, there had been a quarrel between deceased and accused Mukesh Tiwari.
ii) Accused Mukesh Tiwari was getting 25% of the profit of tickets blacking while remaining profit was shared equally by deceased and his friend witness Shyam Kishore Tiwari. Accused Mukesh Tiwari demanded equal share of 33% in the profit which was declined by deceased and Shyam Kishore Tiwari. During quarrel, deceased had beaten Mukesh Tiwari and expelled him from working at Liberty Cinema Hall. Accused Raju @ Rajkumar Gupta, who was also working at Liberty Cinema for about last 1-2 years, also had to leave Liberty Cinema because of deceased Joginder.
iii) It further surfaced during investigation that Mukesh Tiwari and Rajkumar Gupta @ Raju had conspired to eliminate deceased Joginder as Muksh Tiwari was upset after being removed from the business and wanted to avenge his beatings so he contacted Rajkumar Gupta who also wanted to work at Liberty Cinema.
Rajkumar Gupta contacted his friend Kakey @ Harinder and both of them (Rajkumar Gupta and Mukesh Tiwari) had shown deceased and his auto to Kake. Kake further involved one Deepak (JCL), Nepali, Gabbar @ Naeem Khan, Chhota Salim and Mota Salim @ FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.2/24 Vijay in this conspiracy. Mohan @ Nepali and Deepak were also shown the deceased and his auto rickshaw by co-accused Rajkumar and Mukesh Tiwari and also the way deceased took towards his home.
2. It was decided amongst the co-accused persons Rajkumar @ Raju, Mukesh Tiwari and Harender @ Kake that they would thrash and stab deceased so badly that he would remain confined to bed for atleast 6-7 months and in the meantime, they would capture the business at Liberty Cinema because Shyam Kishore Tiwari alone could not do anything. Co-accused Raju, Mukesh and Harender @ Kake decided to share the profit equally. On the night of 08.07.2011 at 10 pm when Joginder started for his house from Liberty Cinema in his auto, JCL Deepak and Nepali chased him on Pulsar motorcycle and also informed the other accused regarding the deceased having departed from Liberty Cinema. Gabbar, Chota Salim and Mota Salim armed with dandas and Kake armed with knife came to the spot i.e. a lonely stretch at Power house near 5th Pushta, New Usmanpur, in the Honda City car of accused Raju, which he was driving. Raju dropped these persons at the spot and waited for them at some distance. In this way accused Rajkumar Gupta @ Raju and Mukesh Tiwari did not participate in actual killing of the deceased. At about 10.45 pm when deceased Joginder reached at the spot, which was on way to his house, all the persons mentioned above assaulted him with their FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.3/24 weapons. JCL Deepak and Nepali used fists and blows only. Jogender was seriously injured, was got admitted to ISBT Trauma Centre by PCR and succumbed to his injuries on next day i.e. 09.07.2011. As per the postmortem report, deceased died due to injuries to his chest and abdomen by sharp edged weapon. The body bore many other injuries as well.
3. On 14.07.2011 accused Mukesh Tiwari and Raju were arrested at the instance of Shyam Kishore Tiwari, they made their disclosure statements and at the instance of accused Raju, his car was recovered as also one wooden danda, used during commission of offence, from the dicky.
4. On 20.07.2011 Kake @ Harender & Naeem Khan @ Gabbar were arrested in this case after apprehension by staff of Crime Branch. They also made disclosure statements and refused to participate in TIP. At the instance of accused Naeem Khan, auto of deceased and some documents of the same were recovered. JCL Deepak was also arrested. He was later on sent to JJB for trial after he was proved to be a juvenile on the date of offence. After this investigation, challan was filed in the matter, which was committed to sessions court qua accused Raju @ Raj Kumar Gupta, Harender Nagar @ Kake, Naeem and Mukesh Tiwari.
5. Other accused i.e. Vijay @ Mota Saleem and Mohan @ FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.4/24 Nepali and Chota Saleem absconded. Chota Saleem has not been apprehended till today. Remaining two namely Vijay @ Mota Saleem and Mohan @ Nepali were declared P.O. on 28.08.2012. Later on both were arrested and supplementary challan was filed qua them.
Later on by way of supplementary challan these two accused persons were sent for trial.
6. My Ld. Predecessor has framed additional charge u/s. 120B/148/302/120B/174-A IPC vide order dated 09.09.2015 against both the accused persons Mohan @ Nepali and Vijay @ Mota Saleem wherein they pleaded not guilty and claimed trial.
7. To prove its case prosecution has examined PW-1 Virender Singh and PW-2 Ram Kumar as the persons who had identified the dead-body, having known the deceased. PW-1 stated that he had met the injured at the hospital who told him that about 5- 6 persons armed with dandas and knife had beaten and injured him and he did not know the assailants. PW-2 stated that deceased told him about the incident of 5-6 unknown persons having assaulted him and also that the assailants had taken away his TSR and its documents, his purse and some tickets. PW-3 Sonu is the person who called at 100 number after seeing the deceased in badly injured condition on the spot.
8. PW-8 Retired ASI Narayan is the Duty Officer who FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.5/24 proved the DD no.38A recorded regarding stabbing of deceased near power house, 5th Pushta and PW-5 SI Om Prakash Duty Officer proved the FIR.
9. PW-4 is Dr. Girish Chandra Prabhat is the medical officer who has prepared the MLC of victim Joginder mentioning different injuries suffered by him.
10. PW-14 is SI Gurcharan who recorded DD no.35B about the death of deceased on information received from ISBT Trauma Centre from Duty Constable.
11. PW-10 Dr. Meghali Kelkar is the autopsy surgeon who has given detailed description of injuries found on the body of deceased. As per her, the cause of death was anti-mortem injuries to chest and abdomen produced by a sharp edged weapon (as per the prosecution case, knife was used by accused Harender Nagar, who died during trial).
12. PW-9 Kamal Singh is the eye witness of the incident as per the prosecution case. He was examined on 15.07.2016 i.e. about five years from the date of incident. While he led evidence on the prosecution case, there are some important aspects involved in his testimony. He gave account of the incident in his examination-in- chief to the effect that he came to the spot at about 9.30 pm on foot FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.6/24 while he was walking towards his home after having de-boarding a bus taken by him from Azadpur mandi where he was working. His house was located at Gamri Extension. He saw that about 6-7 persons were giving beatings to one person, one was having danda in his hands, one was having knife and others were beating with kicks and punch blows and they were empty handed. Nobody intervened despite many public persons being at the spot seeing knife in the hand of one assailant. After assaulting the victim, some assailants ran away from there on foot. One left in a TSR and two left on a motorcycle.
13. One important aspect of testimony of this witness is that he could not identify any of two accused persons in first go. He had wrongly identified some other persons as the assailants. One of them was a clerk of some advocate present in court while the other was an accused of another FIR listed for hearing on the same day on which the witness was called to identify the accused. This witness was cross-examined by Ld. Addl. PP on the point of identity of the accused persons. Then Ld. Addl. PP drew his attention towards accused Vijay and Mohan with suggestion that they were among the assailants in this case but the witness did not give any direct answer to this suggestion. The suggestion was put to him again and again to make his stand clear whether the accused persons as pointed out to him were among the assailants or not. At last, he came with an affirmative answer and stated that they were among the assailants.
FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.7/24He gave an interesting explanation as to why he identified two other persons present in the court, as assailants. He said that the assailants looked like them. He further stated that he could not identify the accused persons earlier due to lapse of long time. The witness, of his own, did not state before the court that he did not identify the accused persons out of fear. It was only after Ld. PP give suggestion to him to that effect that he admitted the suggestion regarding not identifying the accused persons out of fear. He volunteered to state that while coming to the court on the date of his deposition, one lady and one man met him and warned him to give his evidence carefully. The witness is therefore taking two different stands, in one go he stated that he could not identify the assailants due to lapse of long time. While a suggestion was put to him that he did not identify due to fear, he affirmed that also. During his cross- examination by defence, he admitted that he did not tell the IO or the Judge about the threat given to him in the morning. It is important to note that IO of this matter was also present in the court on the date of deposition of this witness.
14. It is admitted position that both the accused persons had refused for TIP but despite that, post refusal, none of the accused persons was got identified by the IO from the witness so as to ascertain his exact role in the crime. He had seen them for the first time in the court after more than five years. None of them was known to him previously and he had occasion to see them only for FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.8/24 few minutes in the year 2011 and thereafter he had seen them only in the year 2016.
15. To discuss his evidence further, the witness replied in response to court query that accused Vijay was having danda while accused Mohan was empty handed at the time of assaulting the victim. As per the case of prosecution, it was accused Naeem Khan who was armed with danda. As per the witness only one of the assailant was armed with danda and it was Vijay @ Mota Saleem. Therefore there is contradiction between the case of prosecution and the deposition of eye witness on this important aspect.
16. PW-11 is Shyam Kishore Tiwari. He has deposed on the lines of prosecution case and has mentioned about the quarrel dated 19.06.2011 between deceased Jogender and accused Mukesh Tiwari. He further deposed that some days after this quarrel took place in the month of June 2011, in the last week of June, 2011 he had seen accused Raju and Mukesh with each other and pointing their fingers towards J.P., the deceased. When they saw the witness, they went away. After 2-3 days again both of them came to Liberty cinema and once again, they were pointing towards J.P., the deceased to a third person. One day before the incident of assault, both Raju and Mukesh Tiwari along with three more persons again came to Liberty Cinema near the paan shop of Billa Panwari. The witness identified accused Mohan @ Nepali as one of these three FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.9/24 persons accompanying Raju and Mukesh Tiwari and also stated that he was having a French cut beard at that time. The very next day i.e. on 08.07.2011 the victim was assaulted and died the day after. He denied the suggestions to the contrary during his cross-examination.
17. PW-22 is first IO SI Amit Kumar, who went to the spot along with PW Ct. Subodh/PW-12. He deposed on the same lines and proved the ruqqa about the incident. He deposed about lifting the blood on gauze and seizing the clothes of the victim. He contacted the PCR caller PW-3 Sonu, who told him that he had not witnessed the incident. Further that he collected the dead-body after receiving information of the death of the victim. Later on the investigation was handed over to PW-26 IO/Inspector Arjun Singh. In his cross by ld. counsel for the accused he stated that power house was at a distance of 50 meter from the place where the blood of the victim was lying and there were street lights at every 50 meters on the road at the spot and the place of incident was getting light from street lights, though no street light was shown in the site plan. He denied the suggestion that he did not visit the place of incident or that nobody had informed him in the hospital that deceased was beaten by 3-4 persons.
18. PW-12 Ct. Subodh had visited the spot along with SI Amit, the first IO on receipt of DD no.38A about incident of assault with victim. Injured had been removed to Trauma Centre by PCR by FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.10/24 then and no eye witness was present there. In his presence, SI Amit lifted blood stained earth from the spot and also seized the blood stained clothes of victim as were handed over by doctors to PW-25 Duty Ct. Shishupal who also got the deceased admitted in ISBT Trauma Centre after PCR brought him there. In his cross- examination by ld. counsel for accused, PW-12 Ct. Subodh stated that entire area near the spot has no electric street light installed and it remained in darkness during night and it was pitch dark when they reached at the spot.
19. PW-13 Inspector Mukesh Kumar Jain is the draftsman who prepared scaled site plan of the spot. In his cross-examination he stated that he did not notice whether there were any street light poles near the spot. He admittedly did not make mention of any street light or position of eye witness in the scaled site plan of the spot.
20. Another formal witness PW-17 Ct. Azad Singh deposited the case properties of the present matter (5 in number) at FSL. In his cross-examination he denied that the pullandas were not duly sealed.
21. PW-16 HC Satyapal is a formal witness who proved the PCR form. PW-15 HC Satish Kumar is the MHCM who proved the entries regarding the depositing of the case properties in malkhana and movement of the same. He denied that entries were anti-dated FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.11/24 and anti-time or that he had tampered with the case properties.
22. PW-6 Smt. Poonam Chauhan wife of deceased Joginder produced his TSR bearing no. DL-1RG-1874 and identified its photographs, which was released to her on superdari by court order.
23. PW-7 Smt. Babita, wife of late co-accused Harender Nagar, produced the motorcycle no. DL-5SAA-9613 and proved its photographs and R/C, which as per the prosecution case was used during the commission of offence and was recovered from his house.
24. PW-19 Ct. Sarfraj Ahmed is the DD writer who recorded information vide DD no.38B Ex.PW-19/A about arrest of accused Mohan @ Nepali on 11.01.2015 as received from HC Sudhir. He also proved DD no. 50B dated 11.03.2015 Ex.PW-19/C about arrest of accused Vijay @ Saleem Mota, who had been admitted in LNJP Hospital at that time.
25. PW-20 Ct. Mukesh is a witness to arrest of accused Vijay @ Mota Saleem as he went to Karkardooma court with IO/Inspector Rajiv Ranjan, where accused was produced before Ld. Illaqa MM. He proved documents relating to arrest and disclosure statement made by the accused and identified him before court.
26. PW-18 ASI Sudhir Kumar is another formal witness from FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.12/24 Crime Branch who had arrested accused Mohan @ Nepali and Vijay @ Mota Saleem at the instance of secret informer and prepared kalandra u/s. 41.1(c) Cr.P.C. when the two accused disclosed about their involvement in the present matter and he also sent intimation to PS-New Usmanpur.
27. PW-21 Ct. Sheeshpal deposed about arrest of JCL Deepak and his disclosure statement and consequent recovery of a motorcycle bearing registration no. DL-5SA-9613 at his instance. As per the case of prosecution, accused Mohan @ Nepali alongwith JCL Deepak had used this motorcycle during commission of the offence, though no direct evidence has been led on that aspect.
28. PW-24 SI Dharmendra is the witness, who arrested accused Mohan @ Nepali on 13.01.2015 when he was produced before Ld. Illaqa MM after arrest by the staff of PS-Anand Vihar. He also proved the documents relating to his arrest, personal search and disclosure. He also deposed that he moved an application for TIP of accused, which the accused refused. He also identified the accused.
29. PW-23 is Ms. Prabhdeep Kaur, the then Ld. MM who proved the TIP proceedings of accused Vijay @ Mota Saleem Ex.PW-23/A, who refused for the same.
FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.13/2430. PW-25 is Inspector Rajiv Ranjan, who conducted further investigation after arrest of the two accused persons. Nothing much material was contributed to the investigation of the matter by this IO. He only prepared pointing out memo of accused Mohan @ Nepali with respect to place of assault, which becomes inadmissible in evidence as no new fact was thereby discovered as the place of incident was well within the knowledge of police. Thereafter the witness stated that he had taken accused to Karawal Nagar in order to apprehend accused Vijay @ Mota Saleem but Vijay was not found residing at Karawal Nagar. He claims to have had PW-20 Ct. Mukesh with him during all this investigation but PW-20 makes no mention of the same during his evidence.
31. He further deposed that he received information about arrest of accused Vijay @ Saleem Mota on 11.03.2015 and arrested him with the permission of Illaqa MM on 13.03.2015 when accused was produced there. He proved the documents relating to arrest and personal search of accused Vijay @ Mota Saleem and also his disclosure statement. He deposed that PC remand of the accused could not be taken due to his medical condition. He also applied for TIP of accused, which accused refused.
32. During his cross-examination he denied the suggestion that accused Vijay was produced in court with unmuffled face. He stated that he did not obtain any documentary evidence to show that FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.14/24 accused Vijay ever resided at his previous address as mentioned in previous charge-sheet but denied the suggestion that it was a wrong address but this becomes irrelevant in view of the fact that during statement of accused, accused admitted both his previous addresses where he lived as tenant. He also denied the suggestion that accused Vijay was not known as Mota Saleem also, though he did not record statement of any person to that effect. He further admitted during his cross that accused was not shown to eye witness or any other witness for his identification as an assailant of the victim, during the period of his custody, after he refused for TIP.
33. Post PE, statements of accused persons have been recorded wherein they have denied all the allegations against them and have stated that they are innocent and have been falsely implicated in the present case.
Accused Mohan @ Nepali has admitted that he has refused for TIP. Accused Vijay @ Mota Saleem stated during his S/A that he was not aware whether he was declared P.O. in the present matter. He was very much available in Delhi all throughout. He admitted that he has refused for his TIP and stated that the reason was that 1-2 persons had clicked his photographs in LNJP hospital where he remained admitted for one and half months after meeting with an accident. He stated that he did not know as to who was Mota Saleem. He himself was definitely not known as Mota Saleem. He admitted that he had been a tenant at address C-318, gali no.20, FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.15/24 Khazoori Khas and at H.No.A-667, JJ Colony, Bawana but stated that police had not visited him at either of the addresses.
34. I have heard ld. counsels for the accused persons and have been through the case file.
35. The eye witness Kamal Singh, who has been examined as PW-9 could not identify any of the accused persons in the first go. He took long before he actually identified the two accused persons at the pointing out of Ld. Addl. PP. He had never seen the accused persons after the date of assault i.e. 08.07.2011 night. It has come during the evidence of one PW, that the spot of incident used to remain under darkness during night and there were no street lights there as per the statement of PW Subodh, though as per first IO/SI Amit the street lights and bijalighar were located at a distance of 50 meters from the spot where the blood of the victim was found. Admittedly the incident had taken place after 10.00 pm on 8th July, 2011 and the site plan neither mentioned any street light on the spot nor the position of supposed eye witness Kamal Singh at the spot. In this light, defence has argued that had there been any street light or eye witness at the spot, both of them would have found mention in site plan.
36. Alternatively, the defence has argued that even if the lights were available, the witness did not identify the accused FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.16/24 persons of his own. He had an opportunity to see them for a very short period of time on the date of assault, if at all. In this light, his identification of the accused persons, even at the instance of Ld. Addl PP becomes extremely doubtful. The witness, of his own, did not state before the court that he did not identify the accused persons out of fear. It was only after Ld. PP give suggestion to him to that effect that he admitted the suggestion regarding not identifying the accused persons out of fear. He volunteered to state that while coming to the court on the date of his deposition, one lady and one man met him and warned him to give his evidence carefully. The witness is therefore taking two different stands, in one go he stated that he could not identify the assailants due to lapse of long time. While a suggestion was put to him that he did not identify due to fear, he affirmed that also. During his cross-examination by defence, he admitted that he did not tell the IO or the Judge about the threat given to him in the morning. It is important to note that IO of this matter was also present in the court on the date of deposition of this witness.
37. It is admitted position that both the accused persons had refused for TIP but despite that, post refusal, none of the accused persons was got identified by the IO from the witness so as to ascertain his exact role in the crime. He had seen them for the first time in the court after more than five years. None of them was known to him previously and he had occasion to see them only for FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.17/24 few minutes in the year 2011 and thereafter he had seen them only in the year 2016.
38. To discuss his evidence further, the witness replied in response to court query that accused Vijay was having danda while accused Mohan was empty handed at the time of assaulting the victim. As per the case of prosecution, it was accused Naeem Khan who was armed with danda. As per the witness only one of the assailant was armed with danda and it was Vijay @ Mota Saleem. Therefore there is contradiction between the case of prosecution and the deposition of eye witness on this important aspect.
39. Ld. counsel for accused has relied upon these judgments to fortify his submissions:
1. JT-1999 (9) SC-43 State of Himachal Pradesh Vs. Lekhraj and Ors. holding that the evidence of identifying the accused by the witness for the first time at the stage of trial is a weak evidence.
2. 2011 (4)(4) JCC 2463-DHC, B.P.N. Reddy Vs. State of Andhra Pradesh RCR 1991 (2) holding that where the occurrence has happened in the dark of night and the street light was at a distance, it is unlikely that a witness would have a lasting impression on his mind of appearance of the accused persons. It would be hazardous to draw inference that the persons produced before the court as accused were the actual assailants, even if identified by the FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.18/24 witness, particularly in the event there is no corroborating evidence.
3. Crimes XI-1993(3) Kunjayyappakuty & ors. Vs. State of Kerala holding that where a witness saw an occurrence from a distance of 20-25 meters, it would not have been possible for him to identify the assailant. The conviction was set aside by the Hon'ble High Court of Kerala on that basis.
4. 1998 SCC (Crl.)859 Ronny @ Ronald James Alwaris & Ors. Vs. State of Maharashtra, holding that where a witness identified the accused in the court for the first time after a long time from the date of incident, the probative value of such uncorroborated evidence becomes minimal and it is unsafe to rely upon the same and thereby convict an accused.
5. 2002 (4) (Cri) 307 (SC) Dana Yadav @ Dhau & Ors. Vs. State of Bihar, Hon'ble Supreme Court has set aside the conviction of a person who was neither named in FIR nor in statement before the police by the witness but was identified in the court for the first time after two years of incident.
40. All the judgments are relevant and applicable in the facts and circumstances of the present case. In the case at hand, the eye witness Kamal Singh had seen the accused persons for the first time in the court after about five years of the incident. He had not known any of the accused persons previously and had a cursory glance of them in the dead of night, about 50 meters away from light for about 10-15 minutes. Both the accused persons had refused for TIP and FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.19/24 admittedly even after refusal of TIP, none of the accused persons were shown to the witness during investigation of the case.
41. The CDRs alongwith Cell Tower IDs and CAF were admitted by the defence on 29.11.2016. The relevant details can be presented in the following tabular form:
Phone No. Service Used by Recovered CAF details IMEI No's used Calls Made to co-accused Provider & from, (between 07.07.2011 to Date of 09.07.2011) Issue Exhibit no.
9958390839 Airtel Harender Harender Abdul Furkan 357448032684490 9289907813 (Rajkumar)
Nagar Nagar S/o Abdul on 7.7.11 at
Razak R/o 20.41,20,56,21.03
Ex.PW-26/A 21/80,
Welcome, 9891949444 (Rajkumar)
(Kalandara) on 7.7.11 at 20.23,20.25
Seelampur,
Delhi 8.7.11 at
22.56,22.59,23.01,
(Fake ID used) 23.03,23.08
9953682579 (Deepak) on
8.7.11 at
22.36,22.40,22.43,22.45
9560423283 (Naim Khan)
on 08.07.11 at 23.12
9560423283 Airtel Naim Naim Khan Asha Sharma 355101041425720 9953682579 (Deepak) on
Khan @ W/o 8.711 at 20.38, 21.06,
29.11.09 Gabbar Ex.PW-26/A (Samsung CE 016 21.26, 21.41, 22.02, 22.06,
Ram Prasad Phone) recovered 22.16, 22.29, 22.30,
(Kalandara)
23.01,23.06
R/o A-27B, from Naim Khan
RST Enclave, 9289907813 (Rajkumar)
Johripur Extn., vide Ex.PW-26/A
on 8.711 at 22.51
Delhi
9958390839 (Harender)
(Fake ID used)
on 8.7.11 at 23.12, 23.14,
23.18, 23.27, 23.31
9289907813 TATA Raj Raj Kumar Vijay Kumar TATA CDMA 9958390839 (Harender)
Kumar Gupta R/o G-1/78, Phone recovered on 7.7.11 at
19.3.201 Gupta Sector-16, from Raj Kumar 20.41,20.56,21.03
0 (Ex.PW- Rohini, Delhi vide Ex.PW-5/D
5/D) 9560423283 (Naim
(Father of Khan) on 8.7.11 at
22.51
accused Raj
Kumar 9211662993 (Mukesh
Tiwari) on 8.7.11 at
11.14, 11.38, 17.38,
18.15
FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.20/24
9211662993 TATA Mukesh Mukesh Abhijit Malik TATA CDMA phone 9289907813
Tiwari Tiwari vide recovered from (Rajkumar) on 8.7.11
R/o Mukesh Tiwari vide at 11.14, 11.38,17.38,
Ex.PW- H.No.243, Ex.PW-5/C 18.15
5/C Nehru Nagar,
Baljit Nagar,
Delhi
(Fake ID
used)
9891949444 Idea Raj Raj Kumar Raj Kumar 352089044677350 9958390839 (Harender)
Kumar Gupta S/o Vijay
Gupta Kumar R/o F- (Samsung phone on 7.7.11 at 20.23,
(Ex. PW- 6/208, recovered from Raj 20.25
5/D) Sector-16, Kumar vide
Ex.PW-5/C) 8.7.11 at 22.56, 22.59,
Rohini, Delhi 23.01, 23.03, 23.08
(Self ID of 9211662993 (Mukesh
accused Raj Tiwari)
Kumar)
on 3.7.11, 4.7.11,
5.7.11, 6.7.11 multiple
times
9540901391 Idea Vijay @ Not Chanda S/o 354798044129670 9560423283 (Naim
recovered Shamsher Khan) on 8.7.11 at
19.05.11 Mota R/o A-154, (Not recovered) 22.34
Saleem gali no.6,
Shiv Vihar,
Delhi.
9953682579 Vodafone Deepak Not Radha Jindal 359332032843470 9958390839 (Harender)
on8.7.11 at 22.36,
01.7.11 (Juvenile recovered R/o 71, Azad (Phone not 22.40, 22.43, 22.45
) Enclave, recovered)
Loni, GZB. 9560423283 (Naim
Khan) on 8.711 at
(Mother of 20.38, 21.06, 21.26,
accused 21.41, 22.02, 22.06,
Deepak) 22.16, 22.29, 22.30,
23.01, 23.06
8447545262 Vodafone Aftab Accused is Rakesh R/o 355787048048640 9958390839 (Harender)
Alam @ P.O. E-82, Gali on 8.7.11 at 20.05,
20.1.11 Chhota no.11, (phone not 20.17, 21.26
Saleem Shastri Park, recovered)
Delhi.
42. The perusal of the same would show that there is no CDR available with respect to any phone number used by accused Mohan @ Nepali. So far as accused Vijay @ Mota Saleem is concerned, though as per the case of prosecution he was using a FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.21/24 mobile phone bearing no.9540901391 but this phone, the sim of which was in the name of one Chanda S/o Shamsher R/o A-154, gali no.6, Shiv Vihar, Delhi was never recovered from his possession.
Also the lady in whose name the CAF was, never examined as a witness. Under these circumstances, the prosecution failed to prove that the accused Vijay was in telephonic or otherwise physical contact with the other co-accused.
43. In this regard there isn't evidence of contact between the two accused persons facing trial now and the remaining co-accused except that witness PW-11 Shyam Kishore Tiwari had identified accused Mohan @ Nepali, having seen him with the convicted co- accused Raju and Mukesh Tiwari one day prior to the incident. This may raise a strong doubt about the complicity of accused Mohan @ Nepali in the crime against victim but a doubt howsoever strong, cannot be a basis to convict anyone. The prosecution has therefore failed to prove its case beyond reasonable doubts against the two accused persons so far as the murder of the victim and the conspiracy to commit the same is concerned.
44. I, therefore, acquit both the accused persons of murder of victim Joginder Pal Singh u/s. 302/120B/149/34 IPC and the conspiracy to commit the same.
45. Now coming to the offence u/s. 174A IPC. Both the FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.22/24 accused persons were declared P.O. on 28.08.2012 when they absconded and failed to appear before the court. It is part of judicial record that process u/s. 82 Cr.P.C was issued against both of them after they had absconded/concealed themselves to prevent execution of non- bailable warrants. The concerned Illaqa MM issuing the proclamation had recorded in its order dated 28.08.2012 that the proclamation was duly published in the manner specified in clause (i) of section (2) of Section 82 Cr.P.C. The recording to this effect is conclusive evidence that the proclamation was published duly satisfying the requirement of law. Therefore, there is no requirement to lead evidence on the aspect of offence u/s. 174 A IPC because the very fact that a person has failed to appear at the specifying place and time as required by Section 82 Cr.P.C proclamation, makes him guilty of the offence u/s. 174A IPC entailing punishment upto seven years of imprisonment. It is also on record of judicial file that none of the accused persons appeared at the specified time and place required by Section 82 proclamation. Though the ld. counsel for accused Vijay @ Mota tried to put up a strong defence in as much as he put to the IO as to what documentary material did he collect with a view to ensure that accused Vijay was also known with the name Mota Saleem. He also asked during cross-examination of the IO as to whether he collected any document regarding the accused having been a tenant at the two addresses found during investigation. But the requirement to place on record any documentary evidence on the aspect of residence of FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.23/24 accused Vijay got diluted once the accused himself admitted during his statement u/s. 313 Cr.P.C, that he had lived as tenant on both the addresses mentioned by the IO.
46. The defence counsel for accused Mohan @ Nepali did not put any question whatsoever to the IO to assail the proceedings u/s. 82 Cr.P.C. In view of the above, I hold both the accused persons guilty of the offence u/s. 174 A IPC.
Put up for arguments on sentence on 31.10.2018.
Digitally signed by SAVITRI SAVITRI
CHAUDHARY
CHAUDHARY ATTRI
ATTRI Date: 2018.11.03
04:08:38 +0530
Announced in the open court (SAVITRI)
today on 25.10.2018 Additional Sessions Judge-03 (Shahdara), Karkardooma Courts, Delhi FIR No.248/11 PSNew Usmanpur State Vs. Mohan Nepali & Ors. Page No.24/24