Delhi District Court
State vs Ravinder on 18 March, 2025
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT - 01) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
STATE Vs RAVINDER
SC No. : 2584/2016
FIR No. : 351/2010
U/S : 302/120B/174A IPC
PS : Sarita Vihar
Particulars of the case
a) Date of Offence : 24.12.2010
b) Offence complained of : 302/120B/174A/34 IPC
c) Name of the complainant : Pradeep Mishra
d) Name of the accused : Ravinder
His parentage, Sh. Charan Singh
R/o Village Barmandpur ki
Mandaia, Post + PS
Gulawati, Distt-
Bulandshahar, UP.
Plea of the accused : Accused pleaded not
guilty
Final order : Accused Ravinder acquitted
Date of Institution : 06.06.2011
Date of Judgment reserved for orders : 24.02.2025
Date of Judgment : 18.03.2025
SC No. 2584/2016
FIR No. 351/2010 State vs Ravinder Page no. 1 of 41
Ld. Additional PP for the State : Sh. Nischal Singh
Ld. Counsel for the accused : Sh. L. K. Verma
JUDGMENT
1. CHARGE-SHEET 1.01 As per charge-sheet, on 24.12.2010, at 09:40 PM, information was received in the PS from the control room regarding shooting of a person at Aali Village jungle near Metro workshop. The information was lodged vide DD No.38A and marked to ASI Satish Chandra who reached the spot with HC Kartar Singh. Since the information was regarding a serious offence, other police officials i.e. SI Parvesh Kasana, SI Virender, HC Samay, HC Kamal and Ct. Satish were also sent to spot. The duty officer also informed the Inspector K. L. Yadav who also reached the spot. 1.02 At the spot, one juti, one loyi, empty cartridge, country made pistol, magazine, 2 empty cartridge, one live cartridge, one screw driver and one motorcycle was found. There were blood stains at the spot. On enquiry, it was found that the injured Bhim Singh Nagar had been taken by his son Rajesh and servant Chhotu to Apollo Hospital. One eyewitness namely Pradeep Mishra was found at the spot whose statement was recorded by SI Ravinder Pakhare.
1.03 Pradeep Mishra stated that he was working for Bhim Nagar in his fields and on 24.12.2010 around 09:20 PM he was taking Bhim Nagar SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 2 of 41 on motorcycle number DL 9SX 4103 and they were going on the road from Aali Vihar to Peer Baba to PAC camp. Suddenly, two motorcycles came from their behind. Two boys were riding on each of said motorcycles. One motorcycle hit their motorcycle from behind and the second motorcycle obstructed their motorcycle from the front. Due to the impact, their motorcycle fell down and Bhim Nagar came under the motorcycle. The boy on the motorcycle in the front pointed the weapon and fired but the weapon did not fire. Pradeep Mishra jumped across the nearby wall and called through his mobile number 9953125781 to Bhim Nagar's servant Chhotu and son Rajesh that Bhim Nagar has been fired upon. Bhim Nagar ran towards PAC camp and said boys chased him and thereafter Bhim Nagar fell down and said boys shot him with bullets and left. Bhim Nagar was taken to Apollo hospital by his son Rajesh and servant Chhotu. 1.04 After recording his statement, SI Virender reached Apollo Hospital leaving Parvesh Kasana and Ct. Kamal to guard the spot. He reached Apollo hospital and obtained the MLC of Bhim Nagar in which the doctor had mentioned alleged history of gun shot half hour ago at Aali Village and further mentioned that patient was brought dead. SI Virender inspected the dead body.
1.05 The crime team and photographer arrived the spot. On the basis of circumstances at the spot and the MLC, offence u/s 302/34 IPC & 25/27 Arms Act was made out and accordingly SI got the FIR registered SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 3 of 41 through Ct. Satish and investigation was marked to Insp. K. L. Yadav. 1.06 The crime scene was got inspected/photographed and site plan was prepared. The articles/arms/ammunition etc. from the spot were seized and were deposited in malkhana. The clothes of deceased and his blood sample was brought from Apollo hospital by ASI Satish Chandra and were seized by Insp. K. L. Yadav. Inquest proceedings were got conducted. Two bullet lead found from the body by the Autopsy surgeon were seized. 1.07 The son of deceased namely Rajesh stated that there was enmity between his father and one Kamlesh since she and her family were staking a claim in the property of his father by claiming herself to be the wife of his father. She had got prepared fake voter cards in her name and her children's name mentioning Bhim Singh Nagar as her husband/their father. Police complaints and Court cases were going on between both parties. Both sons of Kamlesh are of criminal nature. He alleged that his father had been murdered through a conspiracy. He also stated that when he reached at the spot on receiving call from Pradeep Mishra therein his father told him in the presence of their servant Moharram Ali @ Chhotu that he was attacked upon by Ravi, Lokesh, Ravinder and one other boy. 1.08 Witness Moharram Ali was examined and he stated that on the date of the incident around 08:35 PM, he had seen Kamlesh, Ravi, Lokesh, Ravinder, Devender @ Tape and one other boy conversing with each other at the nukkad of the gali and on receiving the phone call of Pradeep Mishra SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 4 of 41 he was going towards the spot of incident, he saw Ravi and Lokesh on motorcycle and Ravinder and other boy on second motorcycle and they were fleeing from the spot towards the colony and after then Kamlesh was running on foot.
1.09 During investigation, efforts were made to trace Ravi and Lokesh but they were absconding from their house at Aali Vihar. On 26.12.2010, the IO received information that Ravi shall be arriving at Sector-37, Noida along with his friend 'R' (later on found JCL) to meet their friend. Thereafter, the IO along with police staff conducted raid and apprehended both of them. They were arrested and they gave disclosure statements. At the instance of Ravi, the pistol used in the offence was recovered from the house of JCL 'R'. Further, another country made pistol (without barrel) used in the offence was got recovered at the instance of accused Ravi from the house of one Subhash at village Chhalera. The motorcycle used in the offence had been stolen by the said accused from Delhi University on 03.12.2010 and during their escape they had an altercation with the occupant of a Swift car near Village Chhalera and they had left the motorcycle therein and same was got recovered from PS of Sector-39, Noida. The clothes of accused which were suspected to have blood stains were also seized by the police. The age verification of accused 'R' was done and he was found to be juvenile and he was released on bail by JJB.
SC No. 2584/2016FIR No. 351/2010 State vs Ravinder Page no. 5 of 41 1.10 PM report was obtained wherein the cause of death was mentioned as hemorrhagic shock caused by fire arm injuries. It was mentioned that injuries no. 1 to 6 are individually and all the injuries are collectively sufficient to cause death in ordinary course of nature. It was further mentioned that all injuries were ante-mortem in nature. 1.11 Scaled site plan was prepared and the exhibits were sent to FSL. Certified copies of the FIRs/Court cases between parties were obtained. On the basis of investigation, the IO concluded that Kamlesh along with her sons Ravi and Lokesh and their companion 'R' murdered Bhim Singh Nagar by hatching a criminal conspiracy. On 15.03.2011, the accused Kamlesh was also arrested. She was wife of Deshvir. She deliberately mentioned the name of her husband as Bhim Singh Nagar even during her arrest as she wanted to claim share in his property and therefore u/s 419/420 IPC was also added in investigation.
1.12 Accused Lokesh was absconding since the date of incident. Though his mother Kamlesh and brother Ravi claimed that on 20.12.2010 he had gone to Vaishno Devi with his friend Rajnish and produced the copy of ticket and hotel details but during investigation it was found that in the intervening night of 24/25.12.2010 there was entry in the guest register at Jatta Di Sarai at Amritsar but neither any signature of the guest nor any ID was taken. Hence, the IO concluded that documentary evidence was created to save Lokesh from arrest. NBWs were obtained against said SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 6 of 41 accused. During investigation, sufficient evidence was not found to arrest the suspect Ravinder Singh and Devender @ Tape. Hence, they were not arrested. Both of them were kept in column no.12. Final report was being filed against JCL 'R' before concerned JJB. On the basis of the investigation, accused Ravi was charge-sheeted u/s 302/120B/34 IPC and section 25/27 Arms Act. The accused Kamlesh was charge-sheeted u/s 302/120B/34 and 419/420 IPC.
1.13 Thereafter, supplementary charge-sheet was filed regarding the FSL report of the pistol recovered at the instance of Ravi from the residence of JCL 'R'. Further, sanction u/s 39 Arms Act was also filed with the said charge-sheet.
1.14 Thereafter, another supplementary charge-sheet was filed against the accused Lokesh as PO after he was declared PO by Ld. MM on 07.01.2012.
1.15 Later on, during trial, third supplementary charge-sheet was filed keeping accused Ravinder in column no.11 mentioning that he was declared PO on 23.08.2012 but was arrested on 16.12.2015 by the officials of special staff and the offence u/s 174A IPC was added in the investigation. During investigation, call details of mob. no. 9540200403 and 9971849226 were obtained. The mob. no.9540200403 was with the accused Kamlesh whereas mob. no. 9971849226 was with accused Ravinder and on 24.12.2010 and 23.12.2010 there were number of SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 7 of 41 conversations between the said mobile phones. Accordingly, accused Ravinder was charge-sheeted for the offences u/s 302/120B/34/174A IPC and section 25/27 Arms Act.
2. CHARGE 2.1 When the main charge-sheet was filed, only the accused Ravi and Kamlesh were committed to the Sessions Court by the Ld. MM. However, when the complainant filed application 173(8) Cr.P.C. before the Sessions Court, the matter was remanded to Ld. MM for summoning the accused Ravinder Singh and Devender @ Tape also. However, in the proceedings before the Ld. MM said accused failed to enter appearance and both of them were declared PO on 13.08.2012. The trial of accused Kamlesh and Ravi was proceeded further. Accused Kamlesh was charged for the offence u/s 302/120B IPC whereas accused Ravi was charged for the offfence u/s 302/120B IPC and section 25/27 Arms Act. Their trial was concluded in the year 2016 wherein vide judgment dated 03.02.2016 both of said accused were acquitted.
2.2 Accused Ravinder was charge-sheeted in March 2016 after his arrest and on the basis of charge-sheets, charge u/s 302/120B/174A IPC was framed against accused Ravinder to which he pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
SC No. 2584/2016FIR No. 351/2010 State vs Ravinder Page no. 8 of 41
3. PROSECUTION EVIDENCE 3.01 In support of its case, prosecution has examined 31 witnesses as follows:-
Serial Name of the witness Nature of the evidence No. PW1 Ct. Dilshad Police official who had taken out the CDR and CAF in the office of ACP, Sarita Vihar PW2 Ravinder Kumar Advocate cited as witness Pandey regarding phone number of accused Kamlesh PW3 HC Neeraj Witness regarding arrest of accused Ravinder on 16.12.2015 PW4 HC Vikram Witness regarding arrest of accused Ravinder on 16.12.2015 PW5 ASI Rajesh Kumar Witness regarding arrest of accused Ravinder on 16.12.2015 PW6 Hari Raj Singh Relative of accused Ravinder who deposed regarding mobile number 9717216240 being used by accused Ravinder PW7 HC Nem Chand Duty officer who recorded DD no.36B regarding arrest of accused Ravinder PW8 R. K. Sharma Owner of the stolen motorcycle allegedly used in the offence SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 9 of 41 PW9 Retd. ASI Satish Police official who collected Chand clothes of deceased and his blood sample from Apollo hospital PW10 SI Pravesh Kasana Police official who participated in the investigation PW11 ASI Kamal Singh Witness regarding arrest of accused Kamlesh PW12 SI Virender Pakhra Witness regarding initial proceedings at the spot PW13 Moharam Ali Circumstantial witness PW14 Ct. Parveen Kumar Special messenger who conveyed the FIR to senior officers PW15 Retd. SI Satish Police official who collected the Chander clothes of deceased from Apollo hospital PW16 ASI Samay Singh Police official who deposited the case properties to FSL PW17 SI Umrao Singh Police official who collected the exhibits regarding the postmortem of deceased from hospital PW18 HC Satish Kumar U.P. police official who found the motorcycle (used in the offence) at Chhalera village PW19 Ajay Kumar Nodal Officer, Bharti Airtel Ltd.
PW20 ASI Girdhar Singh Photographer of crime team who took the SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 10 of 41 photographs of the crime scene PW21 Retd. Insp. Naresh In-charge crime team who Kumar inspected the crime scene PW22 Rockey Son of accused Ravinder (hostile witness) PW23 W/Ct. Sudesh Witness regarding arrest of accused Kamlesh PW24 SI Rajender Dagar Witness regarding arrest of accused Ravi and JCL 'R' and the seizure of mobile phone from accused Devender @ Tape PW25 HC Vijay Kumar The then MHC(M) who deposited the said mobile in malkhana PW26 Yograj Singh Relative of deceased Bhim Singh who identified his dead body at mortuary PW27 Pradeep Mishra Complainant/eye-witness PW28 Rajesh Son of deceased/witness to dying declaration of deceased PW29 Insp. Ram Niwas IO who filed supplementary charge-sheet against accused Ravinder PW30 SI Hari Ram Yadav Police official who executed process u/s 82 Cr.P.C. against accused Ravinder PW31 SI Satish Kumar Police official who got the FIR registered on the rukka SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 11 of 41 3.02 During trial, on 23.08.2018 Ld. Counsel for accused admitted DD entry No.38A and 39A, PS Sarita Vihar dated 24.12.2010 under section 294 Cr.P.C. Same were already Ex.PW28/M and Ex.PW28/N. 3.03 Further, during trial, on 22.01.2020 accused Ravinder admitted following documents u/s 294 Cr.P.C:-
i) FIR of the case Ex.PA1 (running into two pages).
ii) Application of postmortem report of deceased Bhim Singh Nagar Ex.PA2.
iii) MLC of Bhim Singh Nagar dated 24.12.2010 Ex.PA3.
iv) Original scaled site plan Ex.PA4. v) Death report dated 25.12.2010 Ex.PA5. vi) Sanction u/s 39 Arms Act dated 14.02.2012 vide order dated 273/SO/Addl.DCP-I (SE) Delhi Ex.PA6. vii) FSL report bearing no. 2011/F-1003 dated 25.10.2011 (running in two pages) Ex.PA7. viii) FSL report bearing no. FSL-2011/B-997 dated 18.10.2011 (running in two pages) Ex.PA8. 3.04 During the trial, on 26.05.2023, the accused Ravinder admitted
the testimonies of some of the witnesses (who were earlier examined during the trial of accused Kamlesh and Ravi) under section 294 Cr.P.C.
read with 58 Indian Evidence Act.
The details of said witnesses and the nature of their SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 12 of 41 testimonies are described herein:
Sl. No. of Name of witness Nature of evidence witness (during trial of co- accused) PW-1 ASI Guru Charan Singh Duty officer who recorded the FIR PW-13 Prashant Kumar Acquaintance of accused Ravi and Lokesh (Hostile witness) PW-14 HC Satya Prabha MHC(R) PS Maurice Nagar who proved the theft of the motorcycle (which was allegedly used in the offence) PW-16 SI Jai Karan UP police official from PS sector-39, Noida who handed over the motorcycle to the IO of this case PW-18 HC Rajvir Singh MHC(R) PS Jamia Nagar who proved the FIR No.128/10 PS Jamia Nagar PW-20 Hankok Nathaniel Circumstantial witness who found deceased in injured condition PW-21 Dr. Apoorva Sharma Witness who proved the MLC of deceased SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 13 of 41 PW-23 W/Ct. Geeta Police official who received the PCR call regarding the incident PW-24 Insp. Mahesh Kumar Draftsman who prepared scaled site plan PW-31 HC Brij Raj Sharma Duty officer who recorded the information about the PCR call and admission of deceased at Apollo hospital PW-34 Sunita Suman Biological expert from FSL PW-36 Ct. Satender Kumar PCR official of UP Police PW-37 Pawan Singh Nodal Officer, Idea who produced record of mob. no. 9540200403 PW-39 Dr. Asif Kumar Sikary Witness who proved the postmortem report of deceased PW-40 Meghna Yadav The then DCP who proved the sanction u/s 39 Arms Act against accused Ravi PW-41 Rajvir Singh Chauhan Witness who deposed regarding an accident between his car and a motorcycle near Chhalera village (hostile witness) SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 14 of 41 PW-42 V. R. Anand Ballistic expert from FSL who examined the arms/ammunition recovered during investigation 3.05 Further, on 02.05.2024 accused Ravinder also admitted the
testimonies of some of the other witnesses (who were earlier examined during the trial of accused Kamlesh and Ravi) under section 294 Cr.P.C. read with 58 Indian Evidence Act.
The details of said witnesses and the nature of their testimony is described herein:-
Sl. No. of witness Name of witness Nature of evidence (during trial of co-
accused)
PW-28 Insp. K. L. Yadav IO of the case
3.06 Moreover, on 02.05.2024 accused Ravinder also admitted the
following documents u/s 294 Cr.P.C. read with 58 Indian Evidence Act:-
Record of complaints/FIRs etc made by Bhim Singh Nagar and Kamlesh against each other and already Ex.PW18/A, PW1/14A, Ex.PW28/D, Ex.PW28/E, Ex.PW28/F, Ex.PW28/G1, Ex.PW28/G2, Ex.PW28/G3, Ex.PW28/G19 to Ex.PW28/G34 and Ex.PW28/H. 3.07 Accordingly, total 49 witnesses have been examined by SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 15 of 41 prosecution or admitted by the accused but the main witnesses of the case are:-
I) PW - 27 Pradeep Mishra / Complainant / eyewitness; II) PW - 28 Rajesh/ son of deceased / witness to dying declaration;
III) PW - 13 Moharram Ali @ Chhotu / Circumstantial witness / witness to dying declaration;
IV) PW - 20 Hankok Nathaniel / Circumstantial witness who
found deceased in injured condition
V) PW - 28 / K. L. Yadav / IO of the case.
3.08 PW - 27 (examined as PW5 during trial of co-accused)
Pradeep Mishra deposed that in the year 2010 he was residing at H. No. 167, Ali Vihar, New Delhi and he was residing at the above said address since last 13 years at the house of his uncle Bhim Singh Nagar (deceased).
He was working as caretaker of his buffalo and agricultural land. On 24.12.2010, at about 9.15 PM he alongwith his Chacha Bhim were going towards Ali Gaon to the above said address on a motorcycle bearing no. DL-9SX-4103 via Ali Vihar, Peer Baba and PAC Camp. When they reached at the agricultural field and crossed the half way, suddenly he noticed that four persons came on two motorcycles from behind. The first motorcycle hit their motorcycle on the back of his motorcycle and the second SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 16 of 41 motorcyclist stopped in their front blocking their way. As a result of being hit, he lost balance and they fell alongwith the motorcycle. Bhim Singh got up and while getting up Pradeep Mishra saw Ravinder and Lokesh on the motorcycle which was behind them and had hit their motorcycle. On the other motorcycle which was stopped in front of their motorcycle, he recognized Ravi and the other boy whom he can identify if he sees him. The boy whose name he does not know shot a gun at him, but the gun did not fire. Therefore, finding opportunity, he ran and crossed a wall which was by the side of the spot and saw that Bhim Singh was running and behind him Lokesh, Ravinder, Ravi alongwith the fourth boy were chasing him. Ravi was continuously firing at Bhim Singh.
Pradeep Mishra immediately rang up Rajesh, son of Bhim Singh through his mobile phone and informed him about the incident and also told him the names of the persons who were involved in the attack on Bhim Singh. After firing at Bhim Singh all four of them ran towards PAC Camp. Pradeep Mishra reached to Bhim Singh. In the meantime Rajesh and Chhotu i.e. Manager /servant of Bhim Singh also reached there. Pradeep Mishra had informed Chhotu also from his mobile phone after informing Rajesh. Bhim Singh was lying in injured condition and was "chhatpata raha tha". Thereafter, Bhim Singh was taken to the Hospital by Rajesh and Chhotu and he remained at the spot. Thereafter, police reached at the spot and took Pradeep Mishra to the P.S. Sarita Vihar, where police made SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 17 of 41 inquiries from him and recorded his statement vide Ex. PW5/A. Police again met him after 2-3 days and made inquiries from him. He told the police whatever he told in the Court and also informed about the age of fourth person as between 20-22 years. He was thin and fair complexioned. Ravi was driving the motorcycle while the other boy was sitting on the pillion seat. Pradeep Mishra had pointed out the place of incident to the police on the first day itself. During his testimony, he identified the accused Ravinder and also claimed that he can identify the accused Lokesh and the fourth boy, if shown to him.
Witness was briefly cross-examined by Ld. Defence counsel and his earlier cross-examination conducted during the trial of co-accused was also adopted.
3.09 PW-28 Sh. Rajesh deposed that on 24.12.2010, he was present at his house at H. No.157, Aali Gaon, Sarita Vihar, New Delhi. It was around 09:20-09:21 PM when he received call from servant Pradeep Mishra. He said that "chacha ko gher liya, 5-6 log hain, gher kar le ja rahe hai". He was referring his father as chacha. He also referred that incident is taking place (in) our fields. Immediately on his bike, PW28 reached at the fields which are 400-500 meters from house. He found his father Bhim Singh Nagar in injured condition. No body else was found there. However, when he reached, immediately thereon his servant Chhotu @ Moharam Ali also reached there. He took his father in his lap and his father said that SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 18 of 41 "mujhe Ravi, Lokesh, Ravinder aur ek aur ladke ne mara hai ". His servant Chhotu drove the bike and he placed his father on the bike with him on the pillion and they went to Apollo Hospital. However, the doctor checked his father in the hospital but declared him dead. Call was made on number 100 after they had reached the Apollo Hospital. He does not remember who made the call but police arrived in the hospital. Next day, the postmortem of his father was conducted at AIIMS Hospital. While his father was alive, Smt. Kamlesh mother of Ravi and Lokesh had got prepared her ID Card showing his father as her husband. An FIR was got registered regarding forgery of such ID Card. Said ID Card was got prepared so as to claim the property of his father as his wife. His father had lodged the said FIR in Jamia Nagar police station vide FIR No.128/2010. However, Smt. Kamlesh got registered an FIR against his father regarding theft of her Buffalo. At the time of present incident, proceedings of both the FIRs were going on. Due to said previous disputes, he is of the opinion that Smt. Kamlesh had role in the attack of his father also since his father was attacked by the sons of Smt. Kamlesh namely Ravi and Lokesh.
His statement was recorded by the police. Later on, he came to know the name of the fourth person involved in the attack of his father as JCL 'R'. In the statement of their servant Pradeep Mishra, the police had recorded only the names of JCL 'R' and Ravi and he moved an application through his counsel to senior police officials to add names of Lokesh, SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 19 of 41 Ravinder, Smt. Kamlesh and Devender @ Tape. During the postmortem proceedings of his father, he identified the dead body vide memo Ex.PW10/A. He also signed his application with regard to postmortem vide Ex.PW10/B. He can identify all the assailants/accused since he knows them prior to the incident.
During his testimony, witness correctly identified accused Ravinder.
Witness was duly cross-examined by Ld. Defence Counsel. 3.10 PW- 13 Moharam Ali @ Chhotu deposed that he has been living in Delhi for about 28 years and since then he has been working as a Munshi for Chaudhary Bhim Singh Nagar (now deceased) at his office at Aali Vihar. While working as Munshi of Chaudhary Bhim Singh he has been looking after the affairs of his tenancy with regard to the premises let out to different tenants. His office hours were from 8:00-9:00 AM to 8:00- 9:00 PM. About 3-4 years ago, he had left the said job. On 24.12.2010 at about 8.25 PM while he was returning to his house after closing the office and when he had passed about 150 meters from the said office, he saw Kamlesh, Ravi, Lokesh, Devinder @ Tape, one more person aged about 20- 21 years and accused Ravinder standing alongside the boundary wall of demarcating the land of Delhi Government and UP Government. Since all of them except the said person were known to him, he stopped there and heard them engaging in conversation that " Aaj Bhim Singh Ka Ant Ho SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 20 of 41 Jaana Chahiye". When they all noticed him, they stopped their conversation. Thereafter, he went to his house and reached there at about 8:35 PM. He repeatedly tried to contact Bhim Singh Nagar through telephone but he did not pick the call. Thereafter, he tried to contact his son Rajesh but his phone was not reachable. At about 9.25 PM, he received a call from Pradeep Mishra who had been working with Chaudhary Bhim Singh Nagar and he asked him to reach Peer Baba Mazar, PAC Camp. Pradeep Mishra further stated that Ravi, Lokesh, Ravinder and one more boy had attacked Bhim Singh Chaudhary. PW13 immediately took his motorcycle and proceeded to that place and when he was moving towards an empty field adjoining Aali Vihar, he saw two motorcycles coming towards Aali Vihar through the said field. One motorcycle was being driven by accused Lokesh and accused Ravinder was riding as pillion whereas second motorcycle was driven by Ravi and one more boy whose name he does not remember was sitting as pillion. When he moved little ahead he saw Kamlesh running towards Aali Vihar through the said field. When he moved little ahead he further saw Chaudhary Bhim Singh lying in injured condition in the field. Rajesh, son of Bhim Singh had already reached the said place. Rajesh was holding his father Bhim Singh in his lap while Bhim Singh was telling him that accused Ravinder, Ravi, Lokesh and one more person had attacked him. Thereafter he immediately took Bhim Singh to Apollo hospital on his motorcycle alongwith his son Rajesh. While he was SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 21 of 41 riding the motorcycle, Rajesh was holding his father on the motorcycle. When doctor examined him, doctor declared him dead. While on the way, injured Bhim Singh was writhing in pain. He deposed that he can identify Lokesh and Devinder @ Tape and the said boy who was alongwith them. He had also given his statement before the Court for the trial of other accused persons.
Witness was duly cross-examined by Ld. Defence Counsel. 3.11 PW - 20 Hankok Nathaniel deposed that he is residing at F-108, Bhim Colony, Aali Vihar, New Delhi on rent basis. He is working as a Pastor in Church. He knows Chhotu, who is the munshi of Bhim Nagar. On 24.12.2010 at about 9:15-9:30 pm he was present outside his room. Chhotu came and was shouting that some miscreants had surrounded Chacha (Bhim Nagar) in the forest. PW20 immediately ran towards the direction to which Chhotu was pointing that is towards the Majar of Peer Baba. He saw that Bhim Nagar was lying on the ground and some fired cartridges cases were also lying near his body and blood was oozing out from the chest portion of Bhim Nagar. Meanwhile, Rajesh also reached there and thereafter Chhotu and Rajesh took the Bhim Nagar to the hospital by motorcycle. Thereafter, he made call to the police at 100 number by a mobile phone of his friend Amit, which he had gifted to him. 3.12 PW - 28 K. L. Yadav deposed as per the investigation mentioned in the charge-sheet. In regard to the role of accused Ravinder he SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 22 of 41 deposed that he obtained the call details of the mobile number of Smt. Kamlesh bearing number 9540200403 and on its examination he noticed one mobile phone number having frequent conversation / contact before the incident and after the incident. The said mobile number was 9971849226. Initially, the location of this number was of in the area of Aali Vihar and at the spot of incident and after the time of incident, at about 10:20 pm, this mobile number 9971849226 was showing location in the area of Greater Noida. He obtained the ownership details of this mobile phone numbers. It was found in the name of one Hari Raj Singh, R/o D-83, Aali Vihar, New Delhi. Enquiry was made from Hari Raj Singh regarding its number and he revealed that this mobile phone number was being used by his brother-in- law Ravinder. When Ravinder was called he was not available, his son Rocky came to him and informed that this mobile number 9971849226 was of his father but soon before the incident, Ravi S/o Kamlesh had taken this mobile phone from his father and when he went to take back the mobile phone from Ravi, Ravi was not found in the colony or at his house.
He also deposed that on 27.02.2011 one Devender Tape was interrogated in this case and he produced one mobile phone Nokia Mode 3110 black color stating that this mobile phone was given to him by accused Ravi for returning it to Ravinder who is neighbor of Ravi. This particular phone was used by accused Ravi in talking with his mother Kamlesh for committing the crime in question. He seized this mobile phone SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 23 of 41 vide Ex.PW28/J in order to examine the call details.
Copy of call details which were examined by him of Bharti Airtel are Mark 28/X1 in respect of mobile phone no. 9971849226 belonging to Ravinder for the period 20.12.2010 to 25.12.2010 and the copy of call details of Idea cellular Ltd. in respect of phone no. 9540200403 belonging to accused Ravi and Kamlesh for the period of 20.12.2010 to 25.12.2010 are collectively Mark 28/X2.
4. EXAMINATION OF ACCUSED UNDER SECTION 313 CrPC 4.1 After conclusion of prosecution evidence, accused was examined u/s 313 CrPC. He denied the allegations. He stated that he had no concern with the co-accused and that his son was studying at his bua's (accused's sister) place at Aali Vihar. He stated that he was called by the police at police station and 5-6 persons were also brought there. They all were given beatings and after 2-3 days some senior police officer came and seeing their condition, they said that whole police station will be suspended. Then they were provided medical treatment. Thereafter, they were kept at the PS for about 3 days but they were instructed not to leave the PS. After 3-4 days police officers dropped him at his sister's place at Aali Vihar. He further stated that he did not used to visit the house of Kamlesh and he does not even know PW28 Rajesh. He had no knowledge SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 24 of 41 about any disputes between Kamlesh and Bhim Singh. He had no connection with the alleged phone allegedly produced by Devender @ Tape to the IO. He does not keep any phone and he had not given any such phone to Ravi. He had no connection to the alleged mobile no. 9971849226 or 9540200403. He did not have any conversation with Kamlesh on phone. He admitted that Hari Raj is his jija. However, he never used his jija's phone. He stated that his sister was residing at D-84, Aali Vihar, Sarita Vihar, Delhi and if any process u/s 82 Cr.P.C. would have been issued by the Court at the said address she must have informed him. He admitted that he was taken by the police from village Kot and was arrested.
5. DEFENCE EVIDENCE 5.1 Accused chose not to lead any defence evidence.
6. ARGUMENTS 6.1 Arguments were heard on behalf of the accused as well as Ld. Additional PP for the State.
6.2 Ld. Additional PP for the State has argued that accused has been identified by the complainant/eye-witness Pardeep Mishra. Further, the son of the deceased namely Rajesh and the other servant of deceased namely Chhotu have deposed that deceased had named Ravinder as one of the assailants in his dying declaration. Moreover, Chhotu had even seen SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 25 of 41 Ravinder along with co-accused a little before the incident wherein they were planning to kill the deceased. Further, the prosecution has proved the call exchange between the mobile number used by Ravinder and the mobile number used by Kamlesh thereby showing the existence of criminal conspiracy between them. Hence, accused is liable to be convicted for the offence u/s 302/120B IPC. Further, he was declared PO during the trial, therefore, he is also liable to be convicted for the offence u/s 174A IPC. 6.3 On the other hand, Ld. Counsel for the accused has argued that the accused was not named by the complainant in the complaint and moreover even IO did not find sufficient evidence against the accused keeping him in column no. 12 of the charge-sheet. None of the public witnesses are reliable and rather all of them are interested witnesses being associated with deceased. Further, co-accused Kamlesh and Ravi have already been acquitted by the Sessions Court disbelieving the testimonies of said witnesses. Hence, even the accused Ravinder is liable to be acquitted from all the charges.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are reproduced herewith:-
SC No. 2584/2016FIR No. 351/2010 State vs Ravinder Page no. 26 of 41 Section 302 IPC - "Punishment for murder -- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine".
Section 120B IPC - " (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, or imprisonment for a term of 2 years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punishable with for 10 years and with fine.
Section 174A IPC - "Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub section (1) of section 82 of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine".
7.3 After considering the facts of the case and the arguments of the parties, following points for determination arise: -
SC No. 2584/2016FIR No. 351/2010 State vs Ravinder Page no. 27 of 41
1. Whether the testimony of complainant is credible?
2. Whether the testimonies of other circumstantial witnesses are credible?
3. Whether the allegations against the accused are supported by circumstantial evidence?
4. Whether the accused is liable to be convicted for the offence of murder and conspiracy thereof?
5. Whether the accused is liable to be convicted for the offence u/s 174A IPC?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main witness of the case is the complainant i.e. PW27 Pardeep Mishra. In his cross-examination conducted during the trial of co- accused he has deposed that he knew accused Ravi and his family including mother (Kamlesh), sister and brother Lokesh (co-accused). He also knew accused Ravinder for about 8 years. However, in the complaint Ex.PW5/A none of the accused have been named and it is only mentioned that there were four boys on two motorcycles who committed the incident. Thus, the complaint is categorically regarding the persons who were unknown to the complainant or were not seen by the complainant clearly during the incident. In this regard, he even deposed that he has given the SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 28 of 41 names of accused Ravi, Lokesh and Ravinder and the police even read over his statement to him in which they also named accused persons but he subsequently came to know that the names were not included in his statement and accordingly he informed PW Rajesh. However, there appears no reason as to why the police officials shall not record the statement of the complainant correctly. Further, the statement of complainant is a signed statement, unlike statement recorded under section 161 Cr.P.C. and therefore the possibility of changing such statement is almost nil. More so, even the PCR form wherein the report received from PCR van is also mentioned and has been exhibited as Ex.PW23/A mentions the facts as recorded in the aforesaid complaint. In the said report, the PCR officials reported about the statement of Pradeep Mishra and that he mentioned the assailants as 4 ladke hulya u/k (4 boys description unknown). Therefore, the allegations against the accused persons by naming them is a huge improvement and create serious doubts about the credibility of the complainant.
Further, complainant has deposed that he had made phone call to the son of deceased namely Rajesh and the servant of deceased namely Chhotu. He deposed that he informed Rajesh about the incident and also told him the names of the persons who were involved in the attack on Bhim Singh. However, PW28 Rajesh i.e. son of deceased has deposed that he was informed on the call "chacha ko gher liya, 5-6 log hai, gher kar le jaa rahe SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 29 of 41 hai". Therefore, the said information implies that the assailants were unknown persons and contradicts the claim of complainant.
Further, the incident happened in the night hours and it was end of December when there is fog in the night in northern Indian plains. Further, the incident happened in the fields and there is no evidence that there was any source of light at the spot. In regard to the same, the complainant has deposed during his aforesaid cross-examination that it was dark night at about 09:15 PM and that there was fog. However, during his cross-examination during trial of accused he has deposed that there was no fog at the time of incident and that it was not that dark and visibility was there and he could see the persons. Moreover, admittedly, the motorcycle being driven by the complainant was hit and he fell down and then ran for his life across a wall. As per the site plan Ex.PW24/A the point A has been mentioned as the place where the motorcycle of complainant and Bhim Singh fell down. The point B is mentioned as the point from where Pradeep Mishra witnessed the incident and point E is mentioned where Bhim Singh fell down and was fired upon and thereafter found by his son Rajesh and his servant Chhotu. The points F to N are the points which have been referred where empty case, barrel of country made pistol, screw driver, front piece of cartridge, three used cartridges, one live cartridge and two lead of two cartridges were found. The location of points F to N is immediately next to the point I and indicate that the whole firing was done SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 30 of 41 at point I. However, the distance between point I and B is mentioned as 7,000+1,300+500+1,190 with the scale of 1 cm = 100 cm. Therefore, it appears that the complainant watched the incident from about 100 meters away. However, it appears highly improbable that in the foggy night of December end, the complainant would have seen the faces of the assailants in the given circumstances.
8.2 The next important witness of the case is son of deceased i.e. PW28 Rajesh. He has deposed that he was witness to the dying declaration of his father Bhim Singh Nagar who had stated that " mujhe Ravi, Lokesh, Ravinder aur ek aur ladke ne mara hai ". However, it is to be noted that PW20 Hanok Nathaniel was a local resident who arrived at the spot after knowing about the incident. He deposed that he got to know about Bhim Nagar being surrounded in the forest by miscreants as Chhotu was shouting about the same and thereupon he reached at the spot and found Bhim Nagar lying on the ground. He also deposed that meanwhile Rajesh came there and thereafter Chhotu and Rajesh took Bhim Nagar to hospital. However, in his entire examination or cross-examination he has not mentioned about any such dying declaration at the spot. He also deposed that Rajesh reached there within seconds of him reaching there and accordingly it is confirmed that Rajesh did not reach before him and hence the dying declaration, if any would have been heard by him also. Further, in his cross-examination he also deposed that a large number of persons reached at the spot and they SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 31 of 41 were about 100 in number. On the contrary, during his cross-examination PW28 Rajesh has deposed that there was nobody else at the moment when he reached at the spot. Further, PW20 also admitted that Rajesh and Chhotu had taken the injured to the hospital immediately after reaching there. Hence, there does not appear any occasion for any dying declaration at the spot as claimed by PW28. Moreover, PW 27 Pradeep Mishra has deposed that after firing at Bhim Singh all four of them ran towards PAC Camp. PW27 reached to Bhim Singh. In the meantime Rajesh and Chhotu i.e. Manager /servant of Bhim Singh also reached there. PW27 had informed Chhotu also from his mobile phone after informing Rajesh. Bhim Singh was lying in injured condition and was "chhatpata raha tha". Thereafter, Bhim Singh was taken to the Hospital by Rajesh and Chhotu and he remained at the spot. Accordingly, even the complainant has mentioned about the arrival of Rajesh and Chhotu in his presence and even their departure to the hospital with Bhim Singh. However, there is no reference of any dying declaration in his entire statement. Rather, as per his testimony, Bhim Singh was writhing in pain. Here it may be noted that Bhim Singh was brought dead in the hospital and as per the MLC Ex.PW21/A he was brought within half hour of the gun shot injury. As per the MLC, there were multiple punctured wounds on the body. Same have been mentioned in detail in the postmortem report PW39/A of the deceased. In brief the following injuries were mentioned in said report:
SC No. 2584/2016FIR No. 351/2010 State vs Ravinder Page no. 32 of 41
i) Firearm entry wound 0.5 cm x 0.5 cm over the back side of the left side of the neck with wound track passing through neck muscles, cervical spine, spinal cord and exiting out on the right side of the neck through injury no.2.
ii) Firearm exit wound 1.5 cm x 1 cm over right side of the neck.
iii) Firearm entry wound 0.5 cm x 0.5 cm over left side of upper back with wound track passing through posterior chest wall, pleura, upper lobe of left lung, fracturing the left clavicle and exiting out on left supraclavicular region through injury no.6.
iv) Firearm entry wound 0.5 cm x 0.5 cm over mid back on left side with wound track passing through posterior chest wall, pleura left lung. A bullet was recovered from the muscles of the interior chest wall on right side at the level of 8 th intercostal space. There was overlying contusions of size 4 cm x 2 cm over right side of anterior chest wall.
v) Firearm entry wound 0.5 cm x 0.5 cm over left side of lower back with wound track passing through posterior chest wall, stomach and diaphragm. A bullet was recovered from the muscles of the anterior chest wall on the right side at the level of 10 th intercostal space. There were multiple overlying contusions in an area of 10 cm x 8 cm over right side of anterior chest wall.
vi) Firearm exit wound 4 cm x 2 cm over left clavicular region.
vii) Firearm entry wound 0.5 cm x 0.5 cm over back of left SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 33 of 41 forearm with wound track passing through muscles of forearm, fracturing the radius bone and exiting out on front aspect of forearm through injury no.8.
viii) Firearm exit wound 0.5 cm x 0.5 cm over frontal aspect of left forearm.
ix) Multiple lacerated wounds of size 3 cm x 0.5 cm to 10 cm x 0.5 cm bone deep present over occipital region in an area of 12 cm x 10 cm and are associated with hematoma.
Accordingly, there were serious gun shot injuries with 2 bullets embedded in the vital organs of body of deceased and the other gun shots passing through the vital organs. Further, there were serious head injuries also on the body. In the given circumstances, when there was such a brutal attack on the deceased it was highly unlikely that he would have survived for even few minutes after the attack. Moreover, even if he would have been alive when his son arrived, he would have been under immense agony and pain and it appears highly improbable that he would have given any dying declaration to anyone.
Admittedly, previous disputes were going on between the family of Kamlesh/Ravi/Lokesh and the family of deceased. Hence, the son of deceased cannot be said to be a neutral witness against the accused persons. Hence, it is highly unsafe to rely on such dying declaration in the given circumstances.
SC No. 2584/2016FIR No. 351/2010 State vs Ravinder Page no. 34 of 41 8.3 The next important witness of the case is PW13 Moharram Ali @ Chhotu. He has also deposed about the dying declaration of the deceased. However, even his testimony qua the said dying declaration cannot be believed for the reasons discussed in the previous para.
He has also deposed about the presence of accused persons a little away from the spot of incident around 8:25 PM. He also deposed about the accused engaging in a conversation saying " aaj Bhim Singh ka ant ho jaana chahiye". However, during his cross-examination in the trial of co-accused he was questioned regarding the said utterance and he deposed that said fact was not recorded in his statement by the police. He deposed that he went through his statement and realized that some portion narrated by him was not recorded in his statement. He told this to Rajesh Chaudhary (son of deceased) that said utterance was not recorded in his statement. However, there appears no reason as to why the police shall not record the statement of witness correctly. Further, he deposed that after seeing the accused and hearing such occurrence he went to his house and tried to contact Bhim Singh Nagar thorough phone but he did not pick up. Thereafter, he contacted his son Rajesh but his phone was not reachable. However, in his aforesaid cross-examination, he deposed that he had not told to IO about such call to Bhim Singh or about the call to Rajesh thereafter. Hence, there is material improvement in the testimony of said witness. Further, he has also deposed that he was informed about the SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 35 of 41 incident by Pradeep Mishra on phone wherein he told that Ravi, Lokesh, Ravinder and one more boy had attacked Bhim Singh. However, as mentioned earlier, the son of the deceased was only informed about 5-6 persons taking away his father, without any further details of such person. Moreover, in his aforesaid cross-examination, PW Moharam Ali @ Chhotu deposed that he had told the IO that Pradeep Mishra had named the assailants to him but the witness was confronted with his police statement Ex.PW11/D where said fact was not recorded. Hence, said statement also appears to be an improvement. Further, in his cross-examination in the present trial he has deposed that Pradeep Mishra had not told him the name of assailants. He also deposed that Pradeep Mishra met him after two days after the incident and that time police had made him sit at PS. He further deposed that later Pradeep Mishra told the name of the assailants who assaulted Bhim Singh, after coming back from PS. He deposed that first of all he came to know the name of assailants from Rajesh i.e. son of deceased Bhim Singh. Thus, he has contradicted himself in his cross-examination.
PW13 Moharram Ali @ Chhotu has also deposed that after getting the information of the incident on phone he proceeded towards the spot on his motorcycle and on the way he saw two motorcycles, one being driven by Lokesh with accused Ravinder as pillion rider and the second being driven by Ravi with one unknown boy as pillion rider. He also deposed about seeing Kamlesh running towards Aali Vihar through the SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 36 of 41 same field through which the motorcycles were being driven by the aforesaid persons. It may be noted that during his cross-examination the IO/PW28 Insp. K. L. Yadav has deposed that Moharram Ali and Rajesh reached at the spot together on a single motorcycle. In such eventuality, even PW28 Rajesh would have seen the aforesaid accused leaving the spot of occurrence. However, no such statement has been given by PW28 Rajesh. Thus, the testimony of PW13 Moharram Ali @ Chhotu does not inspire confidence.
8.4 Besides the oral testimony of aforesaid witnesses there is no other physical evidence connecting the accused Ravinder to the alleged murder. Neither any arms/ammunition were recovered from his possession nor through his disclosure statement. Even the co-accused were not arrested through disclosure of accused Ravinder. Even the get away vehicles were not recovered at the instance of accused Ravinder. No clothes of accused were seized so as to trace any blood of deceased on the same. Rather the IO had kept Ravinder in column no.12 of charge-sheet mentioning that no sufficient evidence was found against him but he has been kept in column no.12 due to allegations against him by the family members of deceased. The only other evidence which allegedly connected the accused Ravinder to the offence of murder is the call detail record of two phone numbers. As per prosecution, accused Kamlesh was using mobile number 9540200403 and same was in frequent contact with 9971849226 before and after the SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 37 of 41 incident. As per IO the second number was registered in the name of Hari Raj Singh who told that same was being used by his brother-in-law Ravinder i.e. the accused. Accused Ravinder was called but he was not available and his son Rocky came and told that said mobile was of his father but soon before the incident accused Ravi had taken this mobile from his father and when he went to take back the mobile phone from Ravi, Ravi was not found in the colony or at his house. The prosecution has exhibited the CAF of mobile number 9540200403 as Ex.PW1/C and the CDR of said mobile as Ex.PW1/B. The prosecution has also exhibited the CDR of mobile no. 9971849226 as Ex.PW1/A. However, said record shows that the alleged number of accused Kamlesh was issued in the name of one Urmila Devi w/o Sher Singh and not the accused Kamlesh. However, said lady has not been examined as a prosecution witness. The prosecution has tried to establish the usage of said phone by accused Kamlesh by examining PW2 Ravinder Kumar Pandey/the lawyer of accused Kamlesh. However, he has deposed that he does not know to whom said mobile number belongs to and has denied giving any statement to the police mentioning said number to be that of his client Kamlesh. As far as the second number is concerned, PW6 Hari Raj Singh has mentioned the number given to accused as 9717216240 (and not 9971849226). Further, IO himself has mentioned that the son of accused had told that the phone of Ravinder was taken away by Ravi. IO nowhere mentioned that said statement was found to be false and said SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 38 of 41 phone was actually been used by accused Ravinder himself. Moreover, even if there were phone calls between accused Kamlesh and accused Ravinder, the same itself are not an evidence of the fact that accused Ravinder was participant in the murder or conspiracy thereof. As per the case of prosecution, accused Ravi absconded after the offence but it is not the case that accused Ravinder avoided the police during investigation. Rather IO has deposed in his cross-examination that during investigation he had ascertained that Devender @ Tape and Ravinder were not present at the spot at the time of incident. Therefore, there is no credible evidence against the accused Ravinder for the offence of murder or conspiracy thereof. 8.5 Further, it may also be noted that the co-accused Kamlesh and Ravi have already been acquitted by Ld. Sessions Court vide judgment dated 03.02.2016 after considering the evidence of the aforesaid material witnesses. Moreover, said judgment has been affirmed by Hon'ble High Court of Delhi vide order dated 19.09.2017.
8.6 Accused has also been charged for the offence 174A IPC. As per the case of prosecution, NBWs were issued against accused and thereafter process under section 82 Cr.P.C was issued and thereafter accused Ravinder was declared PO on 13.08.2012 by concerned MM. The prosecution has examined the process server PW30 SI Hari Ram Yadav for proving the execution of process under section 82 Cr.P.C. The prosecution has also relied upon the copy of the order of Ld. MM regarding the said SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 39 of 41 declaration. Same has been exhibited as Ex.PW5/C. Ld. APP has argued that the declaration by the Ld. Judicial Officer is a conclusive proof of the commission of offence u/s 174A IPC in view of section 82 (3) Cr.P.C. On the other hand, Ld. Counsel for accused has submitted that no such offence is made out against the accused for two reasons. Firstly, he was not even charge-sheeted under column no.11 and was mentioned only as a suspect under column 12 thereby police itself admitting lack of evidence against him. Secondly, the process u/s 82 Cr.P.C. was never issued at the native place of the accused.
I have considered the submissions.
There is no proof of process u/s 82 Cr.P.C. being served at the native place of the accused. Rather, the process server/PW30 has deposed that process was executed at rented house of accused. However, neither any DD entry regarding departure of process server for execution of such process nor regarding his arrival after the execution of said process has been proved. No photographs of pasting of process have been proved. Moreover, no statement of owner of house or any neighbor or any public witness was recorded by the process server regarding execution of the process. Hence, there is no sufficient proof to prove even the execution of process at the rented house of accused on a particular day. As far as the declaration by the Ld. MM is concerned, section 82(3) Cr.P.C. provides that "A statement in writing by the Court issuing the proclamation to the effect SC No. 2584/2016 FIR No. 351/2010 State vs Ravinder Page no. 40 of 41 that the proclamation was duly published on a specified day, in the manner specified in clause (i) of Sub-Section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.". However, in the order dated 13.08.2012 Ex.PW5/C it is only mentioned that statement of process HC Hari Ram has been recorded and in view of his statement the accused is evading the service/process of law and hence he is declared PO. Since the penal law has to be interpreted strictly, the declaration required u/s 82(3) Cr.P.C. has to be specific in terms of the language therein. However no such specific declaration was made. Hence, the same cannot amount to conclusive proof required u/s 82 Cr.P.C. Accordingly, prosecution has failed to prove even the offence u/s 174A IPC.
9. CONCLUSION 9.1 In view of above said discussion, none of points for determination can be decided in favor of prosecution. Hence, accused Ravinder is acquitted from all the offences charged against him.
(Announced in the Open Court
on 18th March, 2025) SACHIN
Digitally signed
by SACHIN
SANGWAN
SANGWAN Date: 2025.03.18
17:17:29 +0530
(SACHIN SANGWAN)
Additional Sessions Judge, (FTC)-01,
South-East District, Saket Courts,
New Delhi/18.03.2025
SC No. 2584/2016
FIR No. 351/2010 State vs Ravinder Page no. 41 of 41