Delhi District Court
State vs Jitender Yadav on 28 March, 2024
IN THE COURT OF SH. SURENDER MOHIT SINGH
ASJ (FTC)-01(WEST)
TIS HAZARI COURTS: DELHI
SESSION CASE NO. 632/2018
CNR NO. DLWT01-006066-2018
STATE Versus 1) Jitender Yadav
S/o Sh. Sudesh Yadav
R/o H. No. 40-A, Aaheer
Mohalla, Nangloi, Delhi
2) Jitender @ Jitu
S/o Sh. Prahlad Singh
R/o H. No. 27, Pole No. 70
VPO Baprola, Delhi
3) Ravinder @ Chhotu
S/o Sh. Prahlad Singh
H. No. 27, Pole No. 70
VPO Baprola, Delhi
Date of institution before Ld MM : 12.06.2018
Date of receipt in Sessions Court : 06.07.2018
Date of final arguments : 23.03.2024
Date of Decision: : 28.03.2024
Final Judgment: : Acquitted
FIR No. 130/2018
U/s 307/394/397/120-B/34 IPC
P.S Nihal Vihar
JUDGMENT
A.: CASE OF THE PROSECUTION IN BRIEF:-
1. Briefly stated: The case of the prosecution as borne out from the chargesheet is that on receipt of information regarding SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.Pages 1/29
DD No. 26A, ASI Sushil Kumar along with Ct. Sachin reached at the spot i.e. D-54, Naresh Park, Extn, Amanpuri Road where blood was spread inside the room. No eye witness was found at the spot. Ct. Sachin was left to guard the spot. ASI Sushil reached at Bhama Hospital and obtained MLC No. 1720/18 of Sudesh S/o Late Ganga Ram. Doctor opined the nature of injury as 'grievous' and patient was declared unfit for statement.
2. Statement of son of Sudesh namely Jitender Yadav was recorded. He stated that he used to take his parents at D-54, Naresh Park Extn, Amanpuri Road daily at about 10.30 and after 10-15 minutes he used to go to Rao Vihar where also they have rented rooms. They have let out the godown to three persons. He stated that on 11.03.2018 he left his father at around 10.30 and after about 10 minutes his elder brother Praveen came and took money from his father and he also left for Rao Vihar. He stated that again at about 11.30 he came at his godown D-54, Naresh Park Ext and the room of his father was locked from outside and he opened the lock of the room, he saw that his father was lying on the floor of the room in pool of blood and blood was spread all around. He stated that he came outside and telephoned his chacha Ashok Yadav and Rajesh Yadav and took him to Satyabhama Hospital and also made a call at 100 number. Jitender Yadav stated that someone has attacked on the neck of his father with weapon and some unknown persons have attacked his father in order to kill him. ASI Sushil Kumar reached at the spot. Crime team was called and spot was photographed.
3. Consequently, upon the statement of witnesses and MLC, FIR No. 130/2018 under Section 307/394/397/34 IPC was registered at PS Nihal Vihar and investigation was carried out. SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 2/294. Site plan was prepared. Statement of witnesses were recorded. Injured Sudesh Yadav was declared unfit for statement. Doctor handed over blood stained clothes, blood sample and sample seal of injured which police took into possession and deposited in the malkhana.
5. Statement of injured Sudesh Yadav was recorded. He stated that he resides at H. No. 40A, Aheer Mohalla, Nangloi, Delhi. He stated that he has let out godwons and he works as caretaker. He stated that on 11.03.2018 his son Jitender took him to D-54, Naresh Park Extn, Amanpuri Road Delhi at about 10.30 and after some time his another son Praveen came at godown and went after taking money from him. After sometime, his son Jitender also went to Rao Vihar. Sudesh Yadav stated that he was sitting on a chair at the gate of godown and reading newspaper. Two persons came on a scooty who were wearing helmet and after removing helmet they told him that they have come to change the filter. He told them that factory is closed upon which they replied that they will leave after keeping the filter. Out of the one boy, one boy went into a room to keep the filter and another boy was sitting on a scooty. When the person who had gone inside the room did not come out, boy sitting on a scooty asked 'Jitender kitna samay lagega' on which voice came from the room that 'Ravinder abhi thoda samay aur lagega'. Sudesh Yadav stated that he went inside the room and asked the boy on which the boy replied that he is checking filter and trying to cut wire with teeth. Sudesh Yadav stated that he advised him to cut the wire with knife. In the meantime, the boy who was sitting on a scooty put a piece of cloth (angocha) on his neck and pressed his neck and another boy attacked on his neck with sharp edged SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 3/29weapon and Sudesh Yadav became unconscious. He stated that he can identify both the boys on seeing them.
6. During investigation, upon receipt of information from secret infromer, accused Jitender S/o Prahlad and Ravinder S/o Prahlad were interrogated and arrested. Disclosure statement of both accused persons were recorded. Scooty and surgical blade used in the commission of offence were recovered and taken into police possession. On the disclosure statement of accused Jitender S/o Prahlad, accused Jitender Yadav was arrested and his disclosure statement was recorded. He was sent to J/c. Accused Jitender S/o Prahlad refused for his TIP. The investigation culminated into filing of challan against the accused persons alleging the commission of offence under 307/394/397/34 IPC.
7. Ld. MM took cognizance of the offences under Section 307/394/397/34 IPC. After supply of documents, in compliance of Section 207 CrPC, case was committed to the Sessions Court.
B: CHARGE FRAMED AGAINST ACCUSED :-
8. Charge under Section 307/394/34 IPC was framed vide order dated 16.10.2018 against accused Jitender @ Jitu and Ravinder @ Chhotu. Accused Jitender Yadav, Jitender @ Jitu and Ravinder @ Chhotu were also charged for offence under Section 120-B IPC. Accused Jitender @ Jitu was also charged for offence under Section 397 IPC. The case was put up for trial as all the accused persons pleaded not guilty and claimed trial.
C: PROSECUTION EVIDENCE:-
9. In order to bring home guilt of the accused persons, the prosecution has examined following 17 witnesses on record:-
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.Pages 4/29
10. PW1 Sudesh Yadav deposed that he is residing at H. No. 40, Aaheer Mohalla, Nangloi, Delhi along with his wife, two sons namely Parveen Yadav, Jitender Yadav and their families. PW1 deposed that Jitender Yadav used to drop him at his godown at plot no. D-54, Naresh Park Extn, Aman Puri Road, Delhi at about 10.30 AM. He deposed that might be on 14.03.2018, he was suffering from epilepsy. He deposed that he suffered a fit and fell upon a wooden bed and its edge struck against his neck. Thereafter, he fell unconscious and when he regained consciousness, he found himself in hospital. He correctly identified Jitender Yadav in court. PW1 Sudesh Yadav further deposed that on 11.03.2018 Jitender Yadav dropped him on the aforesaid address and thereafter his elder son Praveen came to the aforesaid place and he went away after taking money from him. PW1 also deposed that after sometime Jitender Yadav also went away to Rao Vihar where he had rented out his property. He correctly identified TIP proceedings dated 22.03.2018 qua accused Ravinder Ex. PW1/B.
11. PW3 Ashok Yadav deposed that Sudesh Yadav is his brother. On 11.03.2018, his nephew namely Jitender called him on his phone and told him that his father namely Sudesh Yadav was lying in his plot. He went to the spot and observed that he was lying on the earth. PW3 deposed that he thought that Sudesh Yadav was having injuries on his neck. There was blood spread on the earth also. PW3 removed the blood from his neck and kept the handkerchief on his neck so that blood do not ooze out. Injured Sudesh was taken to Satyabhama Hospital by the vehicle and he was admitted there.
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 5/2912. PW5 Rajesh Yadav deposed that victim Sudesh Yadav is his cousin brother (son of his maternal uncle). On 11.03.2018 at about 10.30 am-11 am, he received a call of Jitender Yadav son of Sudesh Yadav who informed him that something happened with his father and asked to come early at plot No. D-54, Naresh Park Extn, Nagloi. The said park is just opposite to his school situated at plot No. C-72, Naresh Park, Extn, Nangloi. Some godowns and some factories are being run from the said plot of Sudesh Yadav. PW5 deposed that he immediately reached there where Ashok alongwith Ramnath were already present. He saw that his cousin brother Sudesh Yadav was in pool of blood. He immediately came out to arrange some vehicle. In between, son of Ashok Yadav namely Kapil reached at the spot and on his vehicle, they shifted brother of PW5 namely Sudesh Yadav to Satyabhama Hospital. He admitted that on 11.03.2018, he received call of Jitender Yadav upon which he reached the spot i.e. D-54, Naresh Park Extension, Aman Puri Road, Delhi.
13. PW10 Manohar Prasad deposed that his father was running a jewellery shop in the name and style of Mamta Jeweller at A- 13, Prem Vihar, Nangli Dairy, Najafgarh, Delhi. He deposed that his father has expired about two years back. About four years ago, his father was regularly sitting in the shop and PW10 used to sit in the shop occasionally as his study was going on at that time. PW10 deposed that it was evening hours, he along with his father was sitting in their shop. One person came and purchased one silver chain for Rs. 7000/-. Gold polish was done on that chain. They had issued a rough receipt to that person for the said transaction. PW10 deposed that he cannot recollect the face of that person. Police officials called him in the PS and obtained his SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 6/29signatures on some papers. PW10 admitted that the person who purchased the jewellery was brought by the police to their shop.
14. PW13 Nitesh Kumar Sharma deposed that he has been working at the shop of his father for about 8-9 years. His father has been running an electronic shop by the name and style of Sharma T.V.Centre at Sector-20, Rohini, Delhi. Accused Jitender had purchased one iron and one LED TV from his shop in the year 2014 or 2015 and had handed over to him Rs. 8000/-. In this case, IO called him in the PS. However, PW13 did not give any statement to IO. PW13 correctly identified accused Jitender @ Jeetu in court.
15. PW6 Dr. Gopal Sharma, Medical Director, Satyabhama Hospital, Nangloi, Delhi deposed that on 11.03.2018, he was posted as Medical Director, Satyabhama Hospital, Nangloi, Delhi. On that day, Dr. Avinash was working in casualty medical officer under his supervision. On that day, one patient namely Sudesh was admitted in the hospital at 12.10 pm and he was medically examined under supervision of PW6 and MLC no. 1720 was prepared in this regard which is Ex. PW6/A. PW6 Dr. Gopal Sharma further deposed that the patient was having sharp injury in the neck, which was three inch long and 3 cm in deep which was bleeding profusely. Patient was having the difficulty in breathing, drowsy, not able to speak and his over all condition was poor. Immediately, he was incubated, life saving treatment was given and he was transferred to OT for operation to repair and stop the bleeding. PW6 Dr. Gopal Sharma had given his opinion on nature of injury as 'grievous'. The injury was 'sharp cut injury neck'. Opinion is Ex. PW6/B. PW6 deposed that on 11.03.2018, he had also prepared list of clothes SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 7/29of patient Sudesh Kumar Yadav vide document Ex. PW6/B1. On 16.04.2018, he had also issued a certificate which is Ex. PW6/B2. The clothes of patient Sudesh Yadav mentioned in document Ex. PW6/B1 were handed over to IO in sealed condition with the seal of SBH.
16. PW16 Ms T. Priyadarshani, Ld. ACMM, South District, Saket, Delhi that on 15.03.2018, she was posted as MM (NI Act) West District, THC, Delhi. On that day, an application for conducting TIP of accused Jitender S/o Prahlad Singh was marked to her by Ld. MM Sh. Manoj Kumar, West District, THC, Delhi. On that day, IO of the case, ASI Subhash had appeared before her along with accused Jitender S/o Prahlad Singh. Accused had refused to participate in TIP proceedings. The documents relating to aforesaid proceedings were prepared and signed by her. The relevant document were kept in an envelope and were sealed with the seal of 'T.P'. Documents relating to TIP are Ex. PW16/A (04 pages). IO and accused Jitender had also signed the said document. On 22.03.2018, she conducted TIP proceedings of accused Ravinder S/o Prahlad. The witness namely Sudesh Yadav S/o late Sh. Ganga Ram had correctly identified accused Ravinder S/o Prahlad during the TIP proceedings. The relevant documents were prepared which are running into three pages are Ex.PW1/B. The witness Sudesh Yadav and IO/ASI Subhash Chand had also put their signatures on the said document. The Assistant Supdt of Jail No. 11, Mandoli Jail namely Sh. Rahul Sehrawat had also put his signature on the said document.
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 8/2917. PW7 Pawan Singh deposed that he has been deputed to depose on behalf of Mr. Israr Babu, the then Alternate Nodal Officer in the company. PW7 brought the records pertaining to mobile phone record of mobile phone 9990453610 (Jitender Yadav as per CAF) for the period 05.03.2018 to 11.03.2018. PW7 deposed that he has worked with Mr. Israr Babu and had seen him writing and signing the documents. Call details records of aforesaid mobile number, attested copy of customer application form and certificate under Section 65B of Indian Evidence Act as well as covering letter running into nine pages are Ex. PW7/A.
18. PW15 Rajiv Vashisht, Nodal Officer, Bharti Airtel brought the summoned record i.e. CAF, CDR and certificate under Section 65-B Indian Evidence Act pertaining to mobile phone No. 7530894553. The CAF pertaining to above said mobile number issued in the name of Jitender S/o Prahlad Singh running into three pages is Ex. PW15/A. The CDR pertaining to above said mobile number for the period from 05.03.2018 to 11.03.2018 running into seven pages is Ex. PW15/B. The certificate under Section 65-B Indian Evidence Act is Ex. PW15/C.
19. PW2 HC Hari Ram deposed that on 11.03.2018 he was posted as HC at PS Nihal Vihar and working as DO from 8 AM to 4 PM. On that day, at about 12.52 PM, he recorded DD No. 26A PS Nihal Vihar and its true copy Ex PW2/A was given to ASI Sushil for necessary action. Copy of said DD is Ex. PW2/B. On that day at about 3.25 PM, Ct. Sachin handed over him a rukka sent by IO/ASI Sushil Kumar. He made his endorsement on rukka which is Ex. PW2/C. On the basis of said rukka, he got SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 9/29registered FIR No. 0130/2018 PS Nihal Vihar and copy of the said FIR is Ex. PW2/D. He also issued certificate under Section 65B of Indian Evidence Act qua the aforesaid copy of FIR which is Ex. PW2/E. Thereafter, copy of FIR and original rukka was handed over to Ct. Sachin for further handing over to IO for necessary action.
20. PW8 Ct. Hardeep deposed that on 14.05.2018 he was posted as Constable at PS Nihal Vihar. On that day, on the directions of IO of this case, he collected seven sealed parcels from MHC(M) vide RC No. 119/21/18 and went to FSL, Rohini where these parcels were deposited. PW8 deposed that he collected acknowledgment of acceptance regarding the case property and returned to the PS and handed over the same to MHC(M). IO recorded his statement in this regard. Copies of aforesaid RC and acknowledgment are shown to the witness upon which he identifies his signature. These documents are Ex. PW8/A and Ex. PW8/B.
21. PW9 HC Naveen Kumar deposed that on 14.03.2018, he joined the investigation of this case with IO/ASI Subhash Chand. On that day, he reached Rishal Garden while he was on patrolling where ASI Subhash Chand, Ct. Anil and Ct. Rakesh met him. IO told him that two suspects of this case are about to come near Karan Vatika. IO briefed them and with the secret informer, they reached near Karan Vatika. They were again briefed by IO who asked them to take position and to act on his instance. After waiting for sometime, they got an indication from the IO that two boys were coming from the side of Najafgarh were to be apprehended. They surrounded both the boys and apprehended them. Both the accused were interrogated. One of them told his SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 10/29name as Ravinder and the other as Jitender. IO started interrogation with Jitender. IO arrested accused Jitender S/o Prahlad Singh vide arrest memo Ex. PW9/A. The personal search of accused Jitender was conducted vide memo Ex. PW9/B. IO recorded disclosure statement of Jitender which is Mark PW9/C. Accused Jitender disclosed about the involvement of his brother Ravinder after which IO interrogated Ravinder and arrested him vide arrest memo Ex. PW9/D. The personal search of accused Ravinder was conducted vide memo Ex. PW9/E. IO recorded the disclosure statement of accused Ravinder Mark PW9/F. PW9 HC Naveen Kumar further deposed that they took both the accused to the place of incident which was inside a factory in front of MSD Public School, Naresh Park. One of the accused Jitender got recovered a surgical blade used in the crime from a place near the staircase inside the factory. IO seized the surgical blade in a plastic small box and sealed it with the seal of SC. It was seized through seizure memo vide Ex. PW9/G. Thereafter, both the accused led them to DDA flats near Bakkarwala from where they got recovered a scooty used in crime. The number plate was not there in the scooty. It was found in the dicky of the scooty. IO seized the scooty vide seizure memo Ex. PW9/H. PW9 HC Naveen Kumar further deposed that, thereafter, they went to search of third accused Jitender at Ahir Mohalla, Nangloi about which these accused had disclosed in their disclosure statements. They reached the house of Jitender. Jitender was called outside the house and he identified himself as Jitender. IO interrogated him after which he was arrested vide SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 11/29arrest memo Ex. PW9/I. His personal search was conducted vide memo Ex. PW9/J. His disclosure statement was recorded which is Mark PW9/K. All the three accused persons were then brought to PS. PW9 deposed that his statement was recorded by IO. He correctly identified all accused persons in court. The identity of scooty is not disputed. Scooty is Ex. P-1.
PW9 HC Naveen Kumar deposed that IO prepared the site plan of recovery of scooty and surgical blade which are Ex. PW9/K and Ex. PW9/L. He also prepared the pointing out memos Ex. PW9/M and Ex. PW9/N. PW9 identified surgical blade which was seized through seizure memo Ex. PW9/G. The surgical blade is Ex. P-2.
22. PW11 HC Anil Kumar that on 14.03.2018 he was posted as Constable at PS Nihal Vihar, Delhi. On that day, he joined the investigation of this case with IO/ASI Subhash Chand. On that day, at about 8 PM, he along with IO and Ct. Rakesh left the PS for investigating this case and at about 8.10 PM, they reached at Rishal Garden, Police Picket where a secret informer met with IO and gave information about this case. In between, HC Naveen also reached there. The secret informer informed IO that two suspects of this case would come at Karan Vatika to meet somebody and might be apprehended, if raided on time. IO requested 4-5 public persons to join the raiding party but none of them agreed and went away without disclosing their names and addresses. No written notice could be given to those public persons due to paucity of time. Thereafter, IO gave them certain directions and then they reached at Karan Vatika, where they took out positions behind the trees and vehicles. Secret informer was also present there with them. At about 8.30 PM, two persons SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 12/29were found coming from the side of Najafgarh. The secret informer pointed towards both of them and informed IO that they were the suspects of this case. Thereafter, secret informer left that place. Both the aforesaid persons were apprehended by them and they revealed their names as Jitender @ Jitu S/o Prahlad and Ravinder. Thereafter, IO interrogated both those accused persons and recorded their disclosure statements which are Ex. PW11/A and Ex. PW11/B. Thereafter, both the accused were arrested and personally searched by the IO vide memos already Ex. PW9/A, Ex. PW9/D, Ex. PW9/B and Ex. PW9/E. PW11 HC Anil Kumar further deposed that, thereafter, both accused led the police team to DDA Flats near Bakkarwala from where they got recovered a grey colour scooty used in the crime. The number plate was not there on the scooty. It was found in the dicky of the scooty. IO seized the scooty vide seizure memo already Ex. PW9/H. IO also prepared pointing out memo of the place of recovery of scooty vide memo already Ex. PW9/N. Thereafter, both the accused led them at the spot i.e. D- 54, Naresh Park, Godown, Amanpuri, Nangloi, Delhi where IO prepared pointing out memo of the spot at the instance of both accused already Ex. PW9/M. Thereafter, at the instance of accused Jitender @ Jeetu, a surgical blade used in the crime was recovered from the place near the staircase inside the factory i.e. at the spot. IO seized the surgical blade and kept it in a small plastic box and sealed it with the seal of SC and it was seized through seizure memo Ex. PW9/G. He deposed that they went to search the third accused namely Jitender Yadav at Ahir Mohalla, Nangloi upon the disclosure statements of both the aforesaid accused persons. They searched in the house of third accused SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 13/29Jitender Yadav. Accused Jitender Yadav came outside of his house on the calling of IO and on the identification of accused Jitender @ Jeetu, he was interrogated by the IO and, thereafter, he was arrested and personally searched vide memos already Ex. PW9/I and Ex. PW9/J respectively. IO also recorded disclosure statement of accused Jitender Yadav Ex. PW11/C. Thereafter, all the three accused persons were got medically examined and brought to the PS where they were kept in the lock-up. IO recorded statement of PW11.
PW11 HC Anil Kumar deposed that on 20.03.2018 he again joined the investigation of this case with IO. On that day, accused Jitender @ Jeetu S/o Prahlad was in police custody. The accused led them to village Baprola as accused had disclosed that the purse and mobile phone of the victim were disposed off by him in the drain near Shahid Bhagat Singh Park, Baprola. After due efforts, the aforesaid purse and mobile phone of the victim could not be recovered. IO also recorded further disclosure statement of accused Jitender @ Jeetu S/o Prahlad vide memo Ex. PW11/D. Thereafter, accused Jitender @ Jeetu S/o Prahlad led the police team at his house at Baprola and he got recovered one currency note of denomination of Rs. 2000/- and informed to the IO that said currency note was for the amount of Rs. 50,000/- given by co-accused Jitender Yadav to him. IO seized the same vide seizure memo Ex. PW11/E. PW11 HC Anil Kumar deposed that, thereafter, accused Jitender S/o Prahlad led the police team at one jewellery shop namely Mamta Jewellers, Nangli Dairy near Najafgarh where he pointed towards the shop owner namely Manohar Prasad and informed to the IO that he handed over Rs. 7000/- out of Rs. SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 14/2950,000/- which were handed over to him by accused Jitender Yadav to the said Manohar Prasad. IO recorded statement of Manohar Prasad. Thereafter, accused Jitender @ Jeetu S/o Prahlad led the police team at Sector 20, Rohini where he pointed towards one electronic shop and informed the IO that he had handed over rs. 2,700/- to the said shop and informed the IO that he had handed over Rs. 2,700/- to the said shop owner against the purchase of home theater. IO recorded statement of said shop owner namely Nitish. Thereafter, accused was got medically examined and brought back to the PS, where he was kept in the lock-up. IO recorded supplementary statement of PW11.
PW11 HC Anil Kumar correctly identified all the three accused persons in court. Identity of scooty is not disputed by Ld. Defence Counsels. The said scooty is Ex. P-1. PW11 also correctly identified surgical blade Ex. P-2. PW11 also correctly identified currency note of Rs. 2000/- which is Ex. P-3.
23. PW12 HC Rakesh that on 14.03.2018 he was posted as a Constable at PS Nihal Vihar, Delhi. On that day, he joined the investigation of this case with IO/ASI Subhash Chand. At about 8 PM, he alongwith IO and Ct. Anil left the PS for investigating this case and at about 8.10 PM, they reached at Rishal Garden, Police Picket where a secret informer met with IO and gave information about this case. In between, HC Naveen also reached there. The secret informer informed the IO that two suspects of this case would come at Karan Vatika to meet somebody and might be apprehended, if raided on time. IO requested some public persons to join the raiding party but none of them agreed and went away without disclosing their names and addresses. No written notice could be given to those public SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 15/29persons due to paucity of time. Thereafter, IO gave briefing to them and then they reached at Karan Vatika where they took out positions behind the tres and vehicles. Secret informer was also present there with them. After sometime, two persons were found coming from the side of Najafgarh. The secret informer pointed towards both of them and informed the IO that they were the suspects of this case. Thereafter, secret informer left that place. Both the aforesaid persons were apprehended by them and they revealed their names as Jitender @ Jeetu S/o Prahlad and Ravinder. Thereafter, IO interrogated both those accused persons and recorded their disclosure statements Ex. PW11/A and Ex. PW11/B. Thereafter, both the accused persons were arrested and personally searched by the IO vide memos already Ex. PW9/A, Ex. PW9/D, Ex. PW9/B and Ex. PW9/E. Thereafter, both accused led the police team to DDA Flats near Bakkarwala from where they got recovered a grey colour scooty used in the crime. The number plate was not there on the scooty. It was found in the dicky of the scooty. IO seized the scooty vide seizure memo Ex. PW9/H. IO also prepared pointing out memo of the place of recovery of scooty vide memo Ex. PW9/N. Thereafter, both the accused led them at the spot i.e. D-54, Naresh Park, Godown, Amanpuri, Nangloi, Delhi where IO prepared pointing out memo of the spot at the instance of both accused Ex. PW9/M. Thereafer, at the instance of accused Jitender @ Jeetu a surgical blade used in the crime was recovered from the place near the staircase inside the factory i.e. at the spot. IO seized the surgical blade and kept it in a small plastic box and sealed it with the seal of SC and it was seized through seizure memo Ex. PW9/G. SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 16/29PW12 HC Rakesh correctly identified all the three accused persons in court. Identity of scooty is not disputed by Ld. Defence Counsels. Scooty is Ex. P1. PW12 has also correctly identified surgical blade Ex. P-2. PW12 also identifies his signatures on document Ex. PW9/K and Ex. PW9/L. On 16.04.2018 on the directions of IO, PW12 obtained one sealed envelope pertaining to this case from MHC(M) and went to Satyabhama Hospital where he handed over said case property to concerned doctor. PW12 also handed over a request letter which was given by IO to him for giving the subsequent opinion about the weapon of offence. The doctor at the said hospital had opened the seal of envelope and examined the case property and handed over the subsequent opinion. After giving the opinion, the case property was again sealed with the seal of SBH by the doctor and handed over to him. Doctor also handed over him the subsequent opinion. PW12 came back in the PS and handed over the subsequent opinion to the IO and the case property in sealed condition was again deposited in the malkhana. IO recorded supplementary statement of PW12 in this regard.
24. PW14 HC Gopal that on 11.03.2018, ASI Susheel handed over him seven pullandas and one sample seal of Satyabhama Hospital. He made the relevant entry in the register No. 19 and deposited the same in malkhana vide entry at serial no. 2291 dated 11.03.2018. On 14.03.2018 ASI Subhash handed over him the case property of this case and he made the relevant entry at serial no. 2300 dated 14.03.2018. On 20.03.2018 ASI Subhash in connection with this case handed over him another pullanda and PW14 deposited the same in the malkhana vide entry at serial No. 2314 dated 20.03.2018. On 14.05.2018 ASI Subhash had SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 17/29handed over him an authority letter authorizing Ct. Hardeep and as per instructions, PW14 handed over all the pullandas in his custody to Ct. Hardeep for onward transmission to FSL, Rohini vide RC No. 119/21/18. PW14 brought register No. 19 and 21. The relevant entries are Ex. PW14/A (colly 07 pages).
25. PW17 ASI Subash deposed that on 14.03.2018, he was posted as ASI at PS Nihal Vihar. On that day, investigation of present case was marked to him. On that day, he along with Ct. Anil and Ct. Rakesh in the investigation of present case reached at Rishal Garden, Police post where secret informer met them and HC Naveen Beat officer of the area also came there. Secret informer told him that the persons involved in present case would come from Najafgarh side to Karan Vatika, Rishal Garden, Nangloi, Najafgarh road. PW17 told about the said secret information to public persons and asked them to join investigation but none joined. He along with the above mentioned reached near Karan Vatika and started waiting for alleged persons. At about 08:10 pm, two persons came from side of Najafgarh side and stopped at Karan Vatika. Secret informer pointed towards them and he overpowered them and on query from them, he came to know their name as Jitender @ Jeetu and Ravinder. He made inquiries firstly from Jitender who confessed about his involvement in the present case. PW17 arrested accused Jitender vide arrest memo Ex.PW9/A and personally searched him vide personal search memo vide Ex.PW9/B, and recorded his disclosure statement vide Ex.PW11/A. Thereafter, PW17 made inquiries from accused Ravinder @ Chottu who also confessed his involvement in the present case. PW17 arrested Ravinder vide arrest memo Ex.PW9/D and personally searched SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 18/29him vide personal search memo vide Ex.PW9/E, and recorded his disclosure statement vide Ex.PW11/B. PW17 correctly identified accused Jitender and Ravinder present in the court.
PW17 ASI Subash deposed that accused Jitender and Ravinder pointed out the place of incident and pointing out memo of place of incident was prepared at their instance which is Ex.PW9/M. Accused Jitender got recovered one surgical blade from inside the spot i.e. H. No. D-54 Naresh Park Extn near the stairs which was used in the offence. PW17 kept the same in a plastic box and sealed the same with the seal of SC and took the same into police possession vide seizure memo Ex. PW9/B. Both the accused persons Jitender and Ravinder disclosed that they had parked scooty at DDA Flat Bakkarwala and got recovered the scooty from near flat no. 623. PW17 took into possession said scooty vide seizure memo Ex. PW9/H. PW17 also prepared the site plan of the place from where scooty was recovered which is Ex. PW9/K and also the site plan of the place from where blade was recovered which is Ex. PW9/L. Two number plates of the said scooty was found inside its dicky were also seized. PW17 also prepared pointing out memo of said place which is Ex. PW9/N. Thereafter, PW17 along with both accused Jitender and Ravinder at their instance reached at the house of 3 rd accused Jitender Yadav at A-40, Aheer Mohalla, Nangloi where one person whose name he came to know as Jitender Yadav was found present and PW17 arrested him vide arrest memo Ex. PW9/I and personally searched him vide memo Ex. PW9/J, and PW17 recorded disclosure statement Ex. PW11/C. PW17 correctly identified accused Jitender in court. Thereafter, PW17 along with all three accused persons came back to PS Nihal Vihar SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 19/29and got them medically examined. On next day i.e. 15.03.2018 all the accused persons were produced before concerned court in muffled face except accused Jitender Yadav. PW17 moved an application before concerned court regarding judicial TIP of accused Jitender @ Jeetu and Ravinder. But Jitender @ Jeetu refused for his judicial TIP. All the accused persons were sent to J/c.
PW17 ASI Subhash deposed that on 19.03.2018 he moved an application for PC remand of Jitender @ Jeetu and one day PC remand was granted. During PC remand, PW17 along with accused Jitender @ Jeetu searched for robbed mobile phone and purse and accused Jitender @ Jeetu disclosed that he had thrown the mobile phone and purse in the drain and pointed the said drain. PW17 prepared the pointing out memo in this regard which is Ex. PW17/A but no mobile phone or purse was recovered. Accused Jitender disclosed that he was given Rs. 50,000/- by co-accused Jitender Yadav to commit the present offence and out of the said Rs. 50,000/-, he got recovered Rs. 2000/- from his house and took the same into police possession vide seizure memo Ex. PW11/E. Accused Jitender @ Jeetu also told that out of the said Rs. 50,000/-, he had given Rs. 7000/- to Mamta Jewellers, Nagli Dairy, Najafgarh and purchased one silver chain and two silver rings from there. Thereafter, PW17 alongwith accused Jitender @ Jeetu reached at Mamta Jeweller and Mamta Jeweller owner Manohar on seeing accused Jitender @ Jeetu stated that the said person had purchased one silver chain and two silver rings from his shop and paid Rs. 7000/-. Accused Jitender also disclosed that out of said Rs. 50,000/- he had purchased one home theater from Sharma TV shop, Rohini SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 20/29and PW17 along with accused Jitender reached there where its owner Nitesh met PW17 and he on seeing Jitender @ Jeetu stated that said person had purchased one home theater from his shop and went short of Rs. 2700/- and later accused Jitender @ Jeetu gave the same to Nitesh. Thereafter, PW17 produced accused Jitender @ Jeetu before concerned court and he was sent to J/c. In judicial TIP of accused Ravinder, complainant Sudesh Yadav correctly identified him. PW17 obtained opinion regarding nature of injury of the injured from Satyabhama hospital which is Ex. PW6/B2. The scooty recovered in the present case and used in the offence found to be registered in the name of accused Jitender @ Jeetu. Its RC is Ex. ABX-1. PW17 sent the exhibits of the present case to FSL and collected the CDR of mobile phone of accused Jitender @ Jeetu and Jitender Yadav. Thereafter, PW17 filed chargesheet against accused persons. FSL result was awaited at that time. On receipt of FSL result, PW17 filed supplementary chargesheet in the present case. The FSL result is Ex. PA. Identity of case property i.e. blade, scooty and Rs. 2000/- recovered from accused persons is not disputed by Ld. Defence Counsels.
26. During the course of proceedings, accused persons admitted the following documents:-
1. Vehicle particulars document regarding vehicle No. DL11SM9960 Ex. AD-X1.
2. Rukka prepared by ASI Sushil Kumar Ex. AD1
3. DD No. 50A Ex. AD2.
4. Site plan prepared by ASI Sushil Kumar Ex. PW17/DB.
5. Crime Report Ex. PW17/DA.
6. Seizure memo dated 11.03.2018 prepared by ASI Sushil SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.Pages 21/29
Kumar Ex. AD3.
7. Photographs clicked by Ct. Subhash.
D. STATEMENT OF ACCUSED U/S 313 Cr.P.C:-
27. Upon conclusion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. wherein they denied all the incriminating evidence which has come on record against them.
E. DEFENCE EVIDNCE LED BY ACCUSED:-
28. Accused persons have chosen not to lead any evidence in their defence.
F. FINAL ARGUMENTS:-
29. I have heard Ld Addl PP for State as well as Ld. Counsel for accused. I have perused the record carefully.
30. It is submitted by Ld. Addl. PP for State that the case of the prosecution stands proved beyond any shadow of doubt and the accused persons deserve to be convicted for commission of the offence under Section 307/394/397/120-B/34 IPC.
31. On the contrary, it is forcefully argued by Ld. Defence Counsel that there is not even an iota of evidence to substantiate the allegations against the accused persons. It is submitted that all the accused persons be acquitted for the alleged offences.
G. REASONS FOR DECISION:-
32. Let us now examine the case of the prosecution in light of the evidence available on record.
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 22/2933. Accused persons have been sent up to face trial for commission of offence under Section 307/394/397/120-B/34 IPC.
34. It is settled law of criminal jurisprudence that the burden is always on the prosecution to prove that the accused is guilty. If there is any reasonable doubt, the benefit of doubt should always go to the accused. The first principle of criminal jurisprudence is that an accused is always presumed to be innocent till he is proved guilty, if the prosecution is successful in discharging the initial but heavy burden, then the onus shifts on the accused to counter the same either by effective cross-examination, or examining himself as a witness, or somebody on his behalf. If he has given any plausible explanation in his examination under Section 313 CrPC, the Judge while considering the overall evidence, would hold either the case is proved beyond reasonable doubt or not. If evidence so adduced is not one of proof beyond reasonable doubt, benefit of doubt would be extended to the accused.
35. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 23/29evidence.
36. The Court must appreciate the vital distinction between "conjectures" and "conclusions". The evidence must be 'weighed' and 'not counted'. It is the credibility of the evidence which is determinative. The prosecution is required to prove its case beyond 'reasonable doubt' and not 'all doubts'. The degree of proof need not reach certainty but must carry a high degree of probability.
37. The case of the prosecution for commission of offence under Section 307/394/397/120-B/34 IPC hangs upon testimony of star witness/injured PW1 Sudesh Yadav.
38. Accused persons are facing trial upon the allegations that they had inflicted injuries on the person of Sudesh Yadav. The star witness of prosecution i.e. PW1 Sudesh Yadav categorically testified that it might be on 14 th March, 2018, he was suffering from epilepsy and on the day of incident, he suffered a fit of the same and he fell upon a wooden bed and its edge struck against his neck. Thereafter, he fell unconscious and he does not know what happened thereafter. Thereafter, when he regained his consciousness, he found himself in hospital.
39. PW1/star witness has not supported the case of the prosecution. Accordingly, Ld. Addl.PP cross-examined him. During cross-examination by Ld. Addl.PP, PW1 admitted that on 11.03.2018 his son Jitender dropped him at plot No. D-54, Naresh Park Extension, Aman Puri, Road, Delhi and thereafter his elder son Praveen came to the aforesaid place and he went away after taking money from him. He also admitted that after sometime his son Jitender also went away to Rao Vihar where he had rented out his property.
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 24/2940. Despite elaborate cross-examination by Ld. Addl.PP, nothing material for prosecution could be elicited out except that PW1 admitted his signatures on TIP proceedings dated 22.03.2018 qua accused Ravinder S/o Prahlad Ex. PW1/B. However, when Ld. Addl.PP suggested that he identified accused Ravinder in TIP proceedings, PW1 completely denied the said fact. Further PW1 failed to identify accused Ravinder in court as perpetrator of the offence. Similarly, PW1 also failed to identified accused Jitender in court as perpetrator of offence.
41. On perusal of entire testimony of PW1, it is evidently clear that he has neither supported the case of the prosecution nor identified the accused persons as perpetrator of the offence.
42. During cross-examination by Ld. Defence Counsels, PW1 reiterated the facts deposed by him in his examination in chief and he specifically deposed that accused Ravinder was shown to him before the TIP proceedings by the police officials.
43. PW3 Ashok Yadav and PW5 Rajesh Yadav are not eye witnesses to the incident and came to the spot after receiving a phone call of son of Sudesh Yadav and they took the injured to hospital after the incident.
44. PW10 Manohar Prasad and PW13 Nitesh Kumar Sharma have also not supported the prosecution version in the witness box. Despite elaborate cross-examination by Ld. Addl.PP, nothing material could be elicited out.
45. PW7 Sh. Pawan Singh, Alternate Nodal Officer, Vodafone, Idea Ltd and PW15 Sh. Rajiv Vashisht, Nodal Officer, Bharti Airtel Ltd. proved the CAF, CDRs and certificate under Section 65-B of Indian Evidence Act of mobile phone No. 9990453610 in the name of Jitender Yadav and mobile phone No. 7530894553 in SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 25/29the name of Jitender @ Jitu S/o Prahlad Singh for the period w.e.f. 05.03.2018 to 11.03.2018.
46. Testimony of remaining public witnesses i.e. PW2 HC Hari Ram, PW8 Ct. Hardeep, PW9 HC Naveen Kumar, PW11 HC Anil Kumar, PW12 HC Rakesh, PW14 HC Gopal and PW17 ASI Subhash are formal in nature.
47. In Lallu Maji vs. State of Jharkhand AIR 2003 SC 854 the Hon'ble Supreme Court has laid down certain factors to be kept in mind while assessing the testimony of a witness: "The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) Wholy Reliable (ii) Wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of a single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
48. In Siddharth Vashist @ Monu Sharma Vs State of NCT of Delhi 2010 (69) ACC 833 (SC), the Hon'ble Apex Court held that if the prosecution witness has turned hostile, the court may reply so much of his testimony which supports the case of the prosecution and is corroborated by other evidence.
49. In the light of the ratio laid down by the Hon'ble Apex Court in the abovesaid cases, I have no hesitation to observe that star witness PW1 is a complete hostile witness and his testimony SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 26/29is wholly unreliable.
50. The identity of accused in commission of a criminal offence is the most crucial aspect of any criminal trial. Once the victim has himself refused to identify accused persons as perpetrator of alleged offence, his mere presence or the above said utterances are not sufficient to bring home guilt of accused. Hence, I am of the considered opinion that accused persons cannot be held guilty for commission of offence under Section 307/394/397/34 IPC.
51. Now, let us examine whether accused persons can be held guilty for criminal conspiracy under Section 120-B IPC.
52. The prosecution heavily relied upon the CDR data of Jitender Yadav and Jitender @ Jeetu S/o Prahlad. On the other hand, Ld. Counsel for accused persons strongly argued that CDR data is not sufficient to held accused persons guilty for offence under Section 120-B IPC.
53. Recently, Hon'ble High Court of Delhi in Azad @ Gourav Vs State of GNCT of Delhi & Another in Crl. A593/2022 & Crl. M. 1420/2022 DOD 23.03.2023 held as under:-
"CDR data may be an important and effective piece of evidence which may facilitate and assists courts in ascertaining the presence of different participants in commission of an offence including the complainant and proposed accused at one particular place or location which may be their presence at or near the place of occurrence. However, CDR data can only be taken as supporting or corroborative piece of evidence and conviction cannot be made solely on basis of CDR data".
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 27/2954. CDRs data of mobile numbers of accused Jitender Yadav and Jitender @ Jitu S/o Prahlad relied upon by the prosecution merely reveals that on the particular date and time, both mobile numbers were active and were used for communication purpose. Prosecution has no supporting or corroborative evidence on record except CDR data.
55. In the light of ratio laid down by Hon'ble High Court of Delhi, it is settled law that in the absence of other supporting or corroborative piece of evidence, conviction cannot be made solely on basis of CDR data. Hence, I am of the considered opinion that accused persons namely Jitender Yadav, Jitender @ Jitu and Ravinder cannot be guilty of criminal conspiracy under Section 120-B IPC.
56. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution version appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
57. In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, it has been observed herein as under:-
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted."
SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
Pages 28/2958. Consequently, I do not have any hesitation in observing that prosecution has miserably failed to prove its case against accused persons for commission of offence under Section 307/394/397/120-B/34 IPC and they deserve the benefit of doubt.
H. CONCLUSION:-
59. As a cumulative effect of aforesaid discussion, all accused persons stand acquitted for commission of offence under Section 307/394/397/120-B/34 IPC.
60. Ordered accordingly.
61. File be consigned to Record Room.
Announced in Open Court on 28.03.2024 (Surender Mohit Singh) ASJ (FTC)-01, West, THC, Delhi SC No. 632/2018 FIR NO. 130/2018 State Vs Jitender Yadav & Ors.
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