Delhi District Court
State vs . Rajeev @ Fauji @ Billu I.D. No.28/17 on 26 September, 2017
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No. 51, Second Floor, Karkardooma
Courts Complex, Delhi
State Vs. Rajeev @ Fauji @ Billu I.D. No.28/17
FIR No. 167/2006 CNR No. DLSH010004532017
S.C No. 07/17 date of institution : 18.01.2017
P.S. Seemapuri decision reserved on : 23.9.2017
U/ss: 120B r/w section 365/302 IPC, date of decision : 26.9.2017.
201,365, 302/34, 201, 404 & 174A IPC
In the matter of
State (NCT of Delhi) ... State
Versus
Rajeev Kumar @ Fauji @ Billu
son Sh. Ram Sukh
R/o Village Hewa, PS Chaproli, Tehsil Baraut,
District Baghpat, (U.P.) ... Accused
J U D G M E N T
1.1 (Background) This judgment is in respect of this accused Rajeev @ Fauji @ Billu son of Sh. Sukhram. The FIR No. 167/2006 (Ex.PW6/B) was registered on 14.3.2006 in PS Seemapuri, Delhi u/s 365 IPC, on the complaint of Manjeet Singh/PW6 (brother of Sh. Paramjeet Singh, since deceased), that his brother had gone out station for business purposes but he was not responding the telephone calls visavis some other person's voice was being heard by Smt. Madhu/PW1 (wife of Sh. Paramjeet Singh). Simultaneously, another FIR No.113/2006 u/s 302/201 IPC was registered in PS Mansoorpur, District Muzaffarnagar, UP when dead body of an unknown person was found in its area and car bearing registration No.DL5CB6910 was also S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 1 of 13 found abandoned in that area. Moreover, partly investigation was carried by the IO of PS Mansoorpur, district Muzfarranagar by getting the dead body postmortem after taking its photographs inclusive of the seizure of articles found lying near the dead body and also seize of the car. Thus, the investigation carried by PS Mansoorpur, Muzaffarnagar was transferred to PS Seemapuri under this FIR No.167/2006, PS Seemapuri after verifying and identifying the relevant and vital aspects that the vehicle recovered was of deceased Paramjeet Singh and the dead body found was also of Paramjeet Singh. When further investigation was carried by police of Delhi, it result into arrest of three persons namely Sanjeev Kumar son of Ramdass, Ravinder Singh @ Kundoo son of Ramsukh and Anjana daughter of Damdar Singh, besides collection of evidence in the form of documents, papers, material things and opinions.
It had resulted into chargesheet, it was filed on 11.08.2006 against aforementioned three persons namely Sanjeev Kumar, Ravinder Singh @ Kundoo and Anjana for the allegations of sections 302/365/201/34 IPC, and investigation was kept opened in respect of accused namely Rajeev @ Fauji @ Billu, as he could not be arrested. Warrants of arrest against Rajeev were obtained but it could not executed, then process u/ss 82 Cr.P.C was applied, obtained and published by recording appropriate proceedings and process u/s 83 was also executed. Thus accused Rajeev @ Fauji @ Billu was declared proclaimed offender on 19.08.2006, it was followed by supplementary chargesheet by showing his name in 'red ink'.
S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 2 of 131.2 Thus, the chargesheet against three accused and supplementary chargesheet against this accused Rajeev Kumar were committed to the court of Sessions. The charge u/s 120B r/w secs. 365/302, 365/302/34/ 201 IPC was directed to be framed after detailed order in respect Sanjeev Kumar, Ravinder Kumar @ Kundoo and Anjana. The charge was framed against all the three besides charge u/s 404 IPC against each of them individually. The case was put to prosecution evidence and then it had been pending (as case No. SC/45002/15) before the court of Ld. Additional Sessions Judge03 (NorthEast) District and 44 witnesses were examined against the said three accused as well as evidence u/s 299 Cr.P.C. against this accused Rajeev Kumar, as he was declared proclaimed offender.
Thus, the trial against the said three (Sanjeev Kumar, Ravinder Kumar @ Kundoo and Anjana) was concluded and on 21.01.2016 the court of Ld. Additional Sessions Judge03 (NorthEast District) decided their case (No. SC/45002/15).
1.3 It was 15.09.2016 when police came to know of whereabouts of accused Rajeev Kumar alias Fauzi (PO) and he was apprehended vide DD No.16A dated 15.09.2016 and a Kalandra was prepared to this effect, which further result into his arrest on 19.09.2016 in the present case FIR No.167/2016. He has been produced in the present case and this case has been reopened again for trial of this accused Rajeev Kumar alias Fauzi, after filing of second supplementary chargesheet of 11.12.2016, which was presented before the court of Metropolitan S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 3 of 13 Magistrate on 16.12.2016, which was committed to this court on 16.01.2017.
1.4 The second supplementary chargesheet alongwith allegations of the provision of section 174A IPC has been committed to this court of Sessions by the court of Ld. Metropolitan Magistrate, Shahdara District, Delhi, since PS Seemapuri is within the Shahdara District, Delhi. However, the earlier trial was held in North East District by the court of Additional Session Judge03, hence the file was presented to Ld. District and Sessions Judge, Shahdara District for appropriate direction and by order dated 17.01.2017 by the Court of Ld District and Sessions Judge, Shahdara, it has been marked to this court again, since police station Seemapuri presently falls within the jurisdiction of Shahdara District and this court may carry the trial. Consequently, the original record of trial has also been called from the court of Additional Sessions Judge03 (NE) for trial of this accused and file has also been received.
2. (Introduction to prosecution case) - The brief introduction of prosecution case has already been given in paragraphs 1.1 above. The case against this accused has also been opened by prosecution.
3.1 (Charge) The accused Rajeev alias Fauzi alias Billu is charged u/s 120B r/w sec. 365/302 IPC that in the month of March, 2006, more specifically on 12.03.2006, he alongwith (1) Sanjeev, (2) Ravinder Singh @ Kundoo and (3) Ms. Anjana [who have already tried in the court] entered into a criminal conspiracy to abduct and eliminate Paramjeet Singh and in furtherance of the said conspiracy, Paramjeet Singh was abducted from Delhi, he was taken to a rented S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 4 of 13 accommodation at Street No.5, Sitasaran, Jamuna Vihar, Muzaffarnagar, Khatoli (U.P) and murdered him there.
3.2 Accused is also charged for commission of offence U/s 365 IPC that on 12.03.2006 at about 10.30 am at Delhi, in furtherance of conspiracy entered into between him and others (aforementioned named persons) the said Paramjeet Singh was induced by Anjana to leave for Muzaffar Nagar in order to kill him and in pursuance of said inducement, Paramjeet Singh was abducted in order to murder him.
3.3 Accused has been further charged u/s 302/34 IPC that on the night intervening between 12/13.03.2006, in furtherance of conspiracy entered into between him and others, after abduction the said Paramjeet Singh was taken to a rented accommodation at Street No.5, Sitasaran, Jamuna Vihar, Muzafarnagar, Khatoli (U.P.) where he was murdered by this accused alongwith others.
3.4 Accused has also been charged u/s 201 IPC that on the night intervening 12/13.03.2006 at a rented accommodation at Street No.5, Sitasaran, Jamuna Vihar, Muzafarnagar, Khatoli, (U.P.) in furtherance of conspiracy entered into between him and others, the dead body of Paramjeet Singh was removed from that place and thrown in the area falling under P.S. Mansoorpur and washed the floor of that rented accommodation of street No.5, Sitasaran, Jamuna Vihar, Muzfarnagar, Khatoli (U.P.) to cause disappearance of evidence of murder with an intend to screen himself from legal punishment.
S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 5 of 133.5 Accused has also been charged u/s 404 IPC that on the intervening night of 12/13.03.2006 at a rented accommodation at Street No. 5, Sitasaran, Jamuna Vihar, Muzafarnagar, Khatoli, (U.P.) after killing Paramjeet Singh, the (Rajeev @ Fauji @ Billu) dishonestly misappropriated one gold chain and converted it to his own use knowing that said gold chain was in possession of Paramjeet Singh at the time of his death and accused was not legally entitled to its possession.
3.6 After arrest of the accused on 15.09.2016 and 19.09.2016 in the present FIR (since he was declared proclaimed offender), he was charged u/s 174A IPC that he was avoiding his appearance/arrest in this case FIR No. 167/2006 then a proclamation u/s 82 Cr.P.C. was issued by the court by order dated 14.07.2006 for his appearance in the court on 17.08.2006, but he failed to appear on the date fixed and place and he was declared proclaimed offender on 19.08.2006.
3.7 The accused had pleaded not guilty and claimed trial to the charges framed on 10.02.2017. Then, the case was put to prosecution evidence.
4.1 (Prosecution evidence) There are two sets of evidence that 44 witnesses were examined when trial was pending against the said three persons and the present accused was proclaimed offender. However, after arrest of this accused Rajeev, not only some of the witnesses examined were recalled out of 44 examined witnesses but also three more witnesses (PW45, PW46 and PW47) were examined besides the S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 6 of 13 process server, who had executed the process u/s 82 & 83 Cr.P.C.(as Process Server1).
The prosecution witnesses got examined the witnesses namely PW1 Smt. Madhu (wife of deceased Paramjeet Singh), PW6 Sh. Manjeet Singh (author of FIR as well as brother of Paramjeet Singh), PW33 Sh. Paramveer Singh(son of deceased Paramjeet Singh), PW11 Sh. Jagjeet Singh (younger brother of deceased Paramjeet Singh) , PW4 Sh. Devender Kumar (a chance witness who had last seen Paramjeet Singh at Cheetal Restaurant, near Khatoli), PW7 Sh. Kartar Singh (friend/neighbour who had also met Paramjeet Singh on 12.03.2006), PW8 Mohd. Salim (business partner of deceased Paramjeet Singh), PW9 Sh. Hassan Abbas (godown keeper and scrap dealer where PW33 had handed over suit case containing clothes of Paramjeet Singh to be collected for Paramjeet Singh from the place of that godown).
The other witnesses got examined are PW3 Sh. Sunny Kumar Singh son of Sh. Anil Kumar Singh (to establish that accommodation was arranged in Jamuna Vihar, Khatoli for Ravinder Singh, Sanjeev and Anjana), PW26 Shiv Kumar son of Shree Chand (for establishing that he had let out one room at first floor of his house on a monthly rent of Rs.400/ in the year 2006 and he was Ravinder @ Ravi visavis Sanjeev, Anjana and Fauji were visiting him there), PW27 Sh. Sushil Kumar @ Neelu (for establishing that on the request of Mr. Vikash Kumar, he got arranged accommodation in the house of PW26 Shiv Kumar in the year 2006), PW37 Rajpal Singh (to prove that he had let S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 7 of 13 out his house in gali No.5, Jamuna Vihar, Khatoli about two days before festival of Holi in the year 2006 on a monthly rent of Rs.1,500/ to Rs.1,700/ to a tenant, at the recommendation of PW38 Anil Kumar Patwari and later on the police inspected the premises, certain documents/papers were seized therefrom), PW38 Anil Kumar Patwari (for establishing that he got arranged an accommodation to a tenant namely Ravinder in the house of PW37 Rajpal Singh, later on the police visited the accommodation visavis photographs of the premises were taken besides seizure of documents and papers).
The other prosecution witnesses examined were either from the police station Mansoorpur or witness to panchanama of seizure of dead body, photographer, Nodal Officer, police officers from PS Mansoorpur or local police officer of Delhi, doctor witnesses etc. They are PW2 Sh. Ramesh Chand (a panchnama witness), PW5 Sh. Nohid, PW10 HC Vijay Om (Retired), PW12 Nodal Officer Israr Babu, PW13 Nodal Officer Sh. R.K. Singh, PW14 Retired SI Gurmeet Singh, PW15 Sh. Surjeet Singh, PW16 Dr. Shashi Kumar Agnihotri, PW17 Inspector Mukesh Kumar Jain, PW18 Photographer Sh. Nihal @ Baboo, PW19 HC Sanjeev, PW20 Retired SI Udaivir Singh, PW21 Col. A.K. Sachdeva, pW22 Inspector Vijay Bhushan, PW23 SI Akhilesh Vajpai, PW23A SB HC Sohan Pal Giri, PW24 HC Naresh Pal, PW25 SI Shahid Khan, PW28 Ct. Surya Prakash, PW29 ASI Shanker Lal, PW30 Ct. Dinesh Negi, PW31 HC Rishi Kumar, PW32 Sh. Suraj, PW34 Ct. Ram Pal Singh, PW35 Sh. Subhash Chand, PW36 ASI Kirender Singh, PW39 Lady Ct. Indu, PW40 Retired Ct. Sardar Singh, PW41/IO Inspector S.B. Yadav, PW42 SI Rajesh Kumar, PW43 SI Virender S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 8 of 13 Kumar Sharma, PW44 Ms. Anuradha Singh Bhardwarj, then Ld. M.M. and closed P.E. 4.2 On the eve of arrest of this accused Rajeev @ Fauji @ Billu, witnesses (PW3 and PW41) were recalled and reexamined. In addition, PW45 HC Sanjay Nain (to establish that as to how accused/P.O was arrested on 15.09.2016 and Kalandra was prepared), PW46 Inspector Sanjeev Kumar (second IO) [to prove that he carried the investigation on the eve of arrest of accused Rajeev visavis during investigation not only police custody remand was taken but also the facts disclosed were verified by preparing appropriate memo] and PW47 SI Gaurav Chaudhary (to prove that he remained in association with investigation with the second IO/PW46; he is a witness to the memos prepared inclusive of arrest memo, personal search memo etc.).
4.3 For the purposes of proof of charge u/s 174A IPC, the Process Server1 SI Rambir Singh (with the proceeding of section 82 Cr.P.C.) was got examined besides PW45, who had arrested the accused Rajeev @ Fauji @ Billu being proclaimed offender. Then, prosecution evidence was closed. The case was put to statement of this accused.
5.1 (Statement of accused and his plea) Thus, statement u/s 313 Cr.P.C, without oath, of accused was recorded besides his reply to general questions. The reply of accused is blend of different versions, as some of the facts in questions were affirmed some of the questions were denied or shown ignorance of facts as well as that the allegations against him are incorrect or false, with plea of innocence and defence that neither police had gone to his residence nor any proclamation was S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 9 of 13 furnished nor his belongings were seized by the police visavis he had not given any disclosure statement after his arrest about anything misappropriated by him. He has opted for defence evidence to produce Sh. Jasvir Singh. Thus, the case was put to defence evidence.
5.2 (Defence Evidence) The accused got produced DW1 Sh. Jasvir Singh, who was Sarpanch (Pradhan) of Heva Village from period 2005 to 2015 and to establish that no police officer visited the house of accused in his presence during the period 2005 to 2015 nor police came to him to make inquiry about accused Rajeev. DW1 was cross examined on behalf of State. Then defence evidence was closed.
6. (Final hearing) At the juncture of final submissions, Sh. Vikas, Ld. Addl. P.P. for the State and Sh. J S Khushawa, Advocate for this accused Rajeev alias Fauzi presented his contentions. Ld. Defence counse requests that the prosecution could not prove the charges against accused Rajeev and the procedure followed by the process serving agency in respect of process u/s 82 /83 Cr.P.C. has not been proved that they actually visited the native address of accused Rajeev and it is very strange that instead of searching the accused, the process was pasted straightway visavis the articles shown seized (small utensils etc), do not establish that police had actually visited the place of accused Rajeev or seized the articles, these small utensils are easily available in the market. Whereas on the other side it is contended on behalf of the State that it is subject matter of record of visit of the Delhi Police official in the area of other police station, there is appropriate information to the local police and then appropriate proceedings were S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 10 of 13 carried, the court of Metropolitan Magistrate was satisfied with the report furnished and after that satisfaction, the accused was declared proclaimed offender. Attachment of belongings of Rajeev is also on the same pattern, therefore, the contentions commenced on behalf of accused carries no weight.
7.1 (Findings with reasoning) The contentions of both sides are considered and assessed in the light of facts and features of case vis a vis provisions of law. It does not require to reproduce their submission because of nature of facts in issue as well as reasons given with following conclusions (A1) at the time of recording statement of accused U/s 313 Cr.P.C, no incriminating evidence was existing in respect of charge 120B r/w section 365/302 IPC, 365, 302/34, 201, 404 IPC that is why no question pertaining to such allegations were put to the accused, (A2) moreover, the star witness PW3 Sunny has also not identified this accused as one of the culprits of the crime nor any evidence that he was present at the spot of rented accommodation or it was washed by him/accused.
(A3) the prosecution case was that a chain belonging to deceased came to the share of this accused and he had misappropriated by selling it, no evidence surfaced so for allegations us/s 404 IPC, it does not establish charge U/s 404 IPC against this accused.
Thus, accused is acquitted of charges U/s 120B r/w section 365/302 IPC, 365, 302/34, 201, 404 IPC of IPC, S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 11 of 13 7.2 Accused was avoiding his arrest by police, nonbailable warrants were issued against him by the court on the request of investigating officer, as he was avoiding his appearance/arrest. Thus, on application of IO and by order dated 14.7.2006 proclamation u/s 82 Cr.P.C and attachment of warrants u/s 83 Cr.P.C were directed against accused for his appearance in the court on 17.8.2006. On the same very day process u/ss 82 & 83 Cr.P.C were prepared and issued under the seal and signature of court of metropolitan magistrate, Delhi. Process u/s 82 Cr.P.C was affixed on 22.7.2006 (as per report Ex PS1/A) and attachment was done around 16.8.2006 (Ex PS1/C r/w DD no. 26 Ex PW1/D and list of articles Ex PS1/B) by the process server. It is contended on behalf of accused that he had no knowledge of this case or any process of warrants of arrest or of process u/ss 82/83 Cr PC.
First it is to be seen whether the process was issued and executed as per law. There are no proceedings of the court of metropolitan magistrate as on 17.8.2006 being scheduled date of proclamations done but of 19.8.2006 (Ex PS1/E), while declaring the accused as proclaimed offender.
Whereas, first the written proclamation u/s 82 Cr PC ought to be published before scheduled date, which should be not less than 30 days from the date of publication as per requirement of sec.82 Cr.P. C and it is mandatory requirement, which cannot be cured by sec. 465 Cr.P.C. Thus, publication of process U/s 82 Cr.P.C against accused Rajeev alias Fauzi in the present case on 22.7.2006 for scheduled date of 17.8.2006, does not comply with the requirement of law, it is short of S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 12 of 13 mandatory period of 30 days. In addition, in the record of court of Metropolitan Magistrate, there is no proceeding of scheduled date of 17.8.2006 mentioned in the process u/s 82 Cr.P.C. as well as order on the basis of which, process u/s 82 Cr.P.C. was directed but the proceedings were done on 19.8.2006, which was not the date mentioned in the process u/s 82 Cr P C. This does not prove charge U/s 174A IPC. Accordingly, he is also acquitted of charge u/s 174A IPC. to be read sec.82 (1) Cr. P. C. Announced in open court today Tuesday, Asvina 4, Saka 1939.
(Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 26.09.2017 S.C No. 07/17 State v. Rajeev @ Fauji @ Billu Page 13 of 13