Delhi District Court
State vs . on 21 September, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Jai Singh @ Jaibeer
S/o Sh.Surender Singh
2. Vijay Kumar
S/o Sh.Surender Singh
Both accused
R/o Village Alipur Kheri,
Police Station Bhogoan,
District Mainpuri (U.P.)
FIR No. 75/2007
P.S. Gokal Puri
U.Sections 365/302/120B/201/34 IPC
U/s 25 Arms Act.
Sessions Case No. : 94/2008
Date of Institution of case : 18.07.2007
Date of Arguments : 06.9.2011
Date of Judgment : 21.09.2011
Sessions Case No. 94/2008 Page 1/40
2
JUDGMENT:
The present case was registered on the complaint of one Irfan. He runs a travel agency under the name and style of M/s Pal Motors at Shop No.3, near Shiv Vihar Dharamkanta, Chaman Park. On 20th January 2007, he and his partner Nem Pal were sitting in the office. At about 6.00 p.m. two boys aged about 2025 years came to the office and asked for a Qualis for 21st January at 6.00 a.m. for going to Aligarh. At the time of booking, one boy had told his name as Jaibeer Singh son of Harnam Singh R/o House No. 450,Gali No4, PhaseVI, Shiv Vihar. One Ashraf, who was having a Qualis was also sitting with him in the office at that time. Ashraf has requested him to give the booking to him on which he gave the booking to Ashraf. Both the boys have asked Ashraf to come at the given address at 6.00 a.m. The fare of the vehicle was settled as Rs. 6.50 per kilometer.
The complainant Irfan has further alleged in his complaint that next day in the morning at about 5.41 a.m. he received a telephone call from a mobile phone No. 9899955912 on his cell phone No. 9312899959. The caller told that he was Jaibeer Singh and taxi had not yet reached. He told that they were coming to Sessions Case No. 94/2008 Page 2/40 3 the office. Irfan asked them to reach at the house of Ashraf at B252 Indra Vihar,Gali No.2.
The complainant has further alleged in his complaint that on 23rd January 2007, he came to know that Ashraf had not returned yet from Aligarh with his vehicle. Shakeela wife of Ashraf told him that on 21st January 2007 at about 6.00 a.m. three boys aged 2025 years had come to their house and Ashraf has told her that his vehicle was booked for Aligarh, so he was going to Aligarh with his vehicle along with these boys. Thereafter, Ashraf had taken his Qualis bearing No. DL1CH4524 with those boys for Aligarh. He had doubt that those two boys who had booked the vehicle had kidnapped Ashraf along with his vehicle and he could identify both the said boys if shown to him.
During investigation, on 14.2.2007 a information was given by S.I.Sanjeev Kumar Gupta Inter State Section Crime Branch to the Investigating Officer Inspector Bakshi Ram that they have apprehended three persons and a Qualis vehicle, who were involved in the murder of Ashraf. I.O. Inspector Bakshi Ram along with his staff went to Karkardooma Court and they handed over a kalandra to him. After permission from the court, I.O. Inspector Bakshi Ram Sessions Case No. 94/2008 Page 3/40 4 arrested the accused persons Jai Singh @ Jaiveer, Vijay Kumar and Hirdesh @ Chotu, got conducted the TIP proceedings of accused Jai Singh @ Jaiveer and Hirdesh @ Chotu in which both the accused refused to participate in TIP. The I.O. recorded the disclosure statements of the accused persons. The accused pointed out the place where they had committed the murder of Ashraf.
After completion of the investigation, the charge sheet was filed in the court for the offences punishable U/ss 365/ 302/201/120B/34 I.P.C. & u/s 25 Arms Act against all the three accused persons.
The Ld. M.M after compliance of the provisions of section 207 Cr.P.C., committed the case to the court of Sessions.
Vide order dated 4th January 2008, accused Hirdesh @ Chotu was declared juvenile and the accused was directed to be produced appear before the Juvenile Court on 18.01.2008. The I.O. was also directed to file supplementary charge sheet against the accused Hirdesh @ Chotu before the Juvenile Court.
Vide order dated 15.02.2008, a charge for the offences punishable under sections 120B IPC, 365 r/w 120B I.P.C., 302 r/w 120B I.P.C, and 201 r/w 120B I.P.C was framed against both the Sessions Case No. 94/2008 Page 4/40 5 accused persons to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined as many as 25 witnesses.
PW1 is Nem Pal. He has stated that he runs Pal Travel at Shiv Vihar T. Point, Chauhan Park near Shiv Shakti Dharam Kanta Karawal Nagar, Delhi. Irfan is his partner.
PW1 further stated that on 20th January 2007, he, Irfan and Ashraf were sitting at their Travel Agency. Ashraf had a Qualis vehicle. At about 5.00 p.m. two boys aged about 20/21 years came to their agency and they booked a Qualis vehicle of Ashraf for going to Aligarh for 21.01.2007. On 21st January 2007 those boys made a call on the mobile phone of Irfan and told that the booked Qualis vehicle had not reached and after waiting for vehicle they were coming to their agency. Irfan told them that the time of going to Aligarh was fixed as 6.00 a.m. & why they were in hurry. They told Irfan that they wanted to go early so that they may return early. Irfan then told the address of the house of Ashraf which was situated near the agency in Gali No.2 Indira Vihar.
PW1 further stated that he came to know that three persons had taken the Qualis vehicle of Ashraf for going to Aligarh. Sessions Case No. 94/2008 Page 5/40 6 Ashraf was owner of Qualis vehicle bearing No. DL1CH4524 and he had taken the vehicle to Aligarh. The fare of the vehicle was settled as Rs. 6.50 per kilometer. His partner Irfan issued booking receipt after taking Rs.100/ in the name of Jaivir Singh son of Harnam Singh R/o H. No.450 Gali No.4, PhaseVI,Shiv Vihar.
PW1 further stated that till 22nd January 2007 when Ashraf along with his vehicle did not come back to Delhi, on 23rd January 2007 they started searching Ashraf and his vehicle. He has identified accused Jai Singh to whom he had issued the booking receipt. He has also identified other accused Vijay who was with the accused Jai Singh at that time.
PW2 Shakeela Begum is the wife of deceased Ashraf. She has stated that her husband used to ply his Qualis vehicle bearing No. 4524 as taxi. She did not remember the month but it was 21st day of the month, she was present at her house along with his husband. At about 5.50 a.m. three boys came to their house and they knocked the door of their house. She opened the door and found that three boys were standing on the gate. Both the accused persons came to their house with their third companion and asked her to send Ashraf with them along with Qualis vehicle. In the meantime, her Sessions Case No. 94/2008 Page 6/40 7 husband Ashraf also reached there. Her husband told her that his vehicle had been booked on previous date for going to Aligarh. Thereafter, his husband had taken his Qualis vehicle along with the accused persons and their 3rd companion.
PW2 further stated that her husband did not come back on next day i.e. on 22nd. She had tried to contact her husband on his mobile phone No. 9312679065 but it was found switched off. She waited for her husband upto 23rd, but he did not come back. Then, she informed to the relative of his husband and Travel office. She handed over the photograph of her husband to the police. On 24th she lodged a missing report of her husband. She identified the photograph of her husband and the photograph of dead body of her husband Ashraf which are Ex. PW2/A and Ex. PW2/B. The missing report of her husband was lodged vide DD No.39A dated 24.1.2007 at P.S. Gokal Puri, copy of same is Ex. PW2/C. She further stated that when her husband had gone to Aligarh with accused persons in his Qualis vehicle he was wearing a cream colour shirt, blue colour jeans and white shoes.
PW7 Irfan is the complainant. He stated that in the year 2007 he used to run a travel agency under the name and style of Sessions Case No. 94/2008 Page 7/40 8 M/s Pal Motors. Nem Pal was his partner.
PW7 stated that on 20.01.2007 he was present at his travel agency office at Shiv Vihar Tiraha near Shiv Shakti Dharam Kanta, Chaman Park. In the evening at about 6.00 p.m. two boys i.e. the accused persons came to his office and asked for a taxi for 21.1.2007 at 6.00 a.m for going to Aligarh. They told their address as House No.450, Gali No.4, PhaseVI, Shiv Vihar at which the vehicle was to be sent. They asked for Qualis car. One of the said two boys disclosed his name as Jai Veer S/o Harnam Singh. The vehicle was booked at the rate of Rs.6.50 per kilometer. Ashraf was present in his office at that time, who requested him to give this booking to him ( Ashraf). He agreed for the same and gave the booking to Ashraf. Ashraf was having Qualis car No.DL 1CH4524.
PW7 further stated that next day in the morning before 5.45 a.m, he received a telephone call from a mobile phone No. 9899955912 on his Cell phone No. 9312899959. The person calling said that he was Jai Veer Singh and apprised him that the taxi had not yet reached. He stated that the taxi would reach by the fixed time. After 56 minutes, he received another call from the same number and told that the caller namely Jaiveer Singh along with Sessions Case No. 94/2008 Page 8/40 9 other person were present near his Travel Agency office. On this, he told them that if they had come at near his office then they should go to Gali No.2 Indra Vihar near Satish Achar Factory where the taxi was standing at the house of Ashraf. Later on, he came to know that they had taken the vehicle from that place.
PW7 further stated on 23.01.2007 wife of Ashraf sent brother of Ashraf to him to inquire as to why the vehicle had not returned yet. Then, he came to know that Ashraf had not returned yet with his vehicle. They made inquiries in order to ascertain whether the vehicle had reached Aligarh or not and as to for what reason Ashraf had not returned. They also made inquiries in the police stations and police posts on the way to Aligarh.
PW7 further stated that on 24.1.2007 he reported the matter to the police about missing of Ashraf and the vehicle. The police advised him to search for the vehicle as police were of the view that Ashraf might have gone to place of his relatives. On 31.01.2007 he went to Police Station Gokalpuri and apprised the police that Ashraf had not been traced. He gave his statement to the police. On his complaint, FIR was registered.
PW7 further stated that police came to his office. He Sessions Case No. 94/2008 Page 9/40 10 gave the copy of the challan book vide which the booking was made. The carbon copy of the receipt vide which the booking was made for the accused persons is Ex.PW7/A. Police seized the same vide memo Ex. PW 7/B in his presence.
PW7 further stated that after many days he received phone call from the police station that the vehicle had been recovered. He went to Police Station Gokalpuri and from there S.I. Vijay Gupta took him to Tihar Jail for identifying the persons who had been apprehended but accused persons were not shown to him. He had seen the vehicle at police station near Shyam Lal Collage At that time it was bearing the fake registration No. DL 6CA1714 whereas its original number is DL 1CH4524. He saw the vehicle and identified it to be the same which was booked by the accused persons.
PW7 further stated that he was taken by the police to near Nabipur Village within the area of Police Station Dado, District Aligharh where the accused persons had thrown the dead body of Ashraf. He was shown that place by the police. The Qualis was registered in the name of deceased Ashraf.
PW5 is Bir Sahai. He stated that about one year back Sessions Case No. 94/2008 Page 10/40 11 at about 5/5.30 p.m. he heard that someone had thrown a dead body outside their village. He had heard this fact from his children. He went to the spot where one dead body was lying. Immediately, he went to the local Police Post Sankra, U.P. and informed the police. Local police came at the spot. Local police asked him to bring a tractor. He brought the tractor from the village and removed the dead body to Police Station. This witness was cross examined by Ld. Addl. P.P. for the State. This witness denied the suggestion of Addl. P.P. for the State that on 21.1.2007 at about 4.30 p.m. one TATA407 of sky blue colour came from Sankra side, came near to the field of Vijay Singh, they stopped the vehicle TATA407 near the field of Vijay Singh, 34 persons who were sitting in TATA407 threw a dead body in the field and thereafter they left towards Kashganj side.
PW6 is Vijay Singh. He stated that one year ago, he came to know through some children who were playing in his field that a dead body was lying near his field. He did not inform the village chowkidar about the said fact. Local police came there and removed the dead body to the police station. This witness was cross examined by Ld. Addl. P.P. for the State. In is cross examination by Ld. Addl. P.P. this witness has stated that it was incorrect that on Sessions Case No. 94/2008 Page 11/40 12 21.1.2007 he was going towards his field and on the way some persons who were working near his field told him that one dead body was lying near his field or that he immediately went to the spot and found a dead body lying there or that he informed Bir Sahai about this fact and Bir Sahai went to the Police Station and informed the police.
PW3 is S.I. Ompal Singh. He stated that on 31.01.2007, Duty Officer handed over him the copy of the FIR of the present case for investigation. During investigation, he recorded the statements of witnesses, got flashed the wireless message, prepared rough site plan Ex. PW3/A. Thereafter the investigation was transferred to S.I. Vijay Kumar Gupta.
PW10 is Sunil Dhyani Ahlmad, Juvenile Justice Board, Kingsway Camp, Sewa Kutir Complex, Delhi. He has brought the judicial case file of FIR No. 75/07 P.S. Gokal Puri, State Vs. Hirdesh @ Chotu. Accused Hirdesh @ Chotu is facing trial before the Juvenile Justice Borad. He proved the photo copies of sketch of country made pistol and cartridge, seizure memos of the same, disclosure statement, arrest memo and personal search memo of the accused Hirdesh @ Raju, which are Ex. PW10/A to Sessions Case No. 94/2008 Page 12/40 13 Ex.PW10/E. PW13 is ASI Om Prakash. He has stated that on 31.01.2007 he was working as Duty Officer in Police Station Gokal Puri from 4.00 p.m. to 12.00 night. At about 5.45 p.m., complainant Irfan came in the Police Station and on the statement of Irfan, he recorded FIR No. 75/07 U/s 365 IPC. After registration of the case, the investigation was handed over to S.I. Ompal Singh. The copy of the FIR is Ex. PW13/A. PW 17 is Dr. S.K.Sharma, M.S. District Hospital, Aligarh, U.P. He stated that on 22.01.2007 he was posted at the M.S. District Hospital, Aligarh. He had prepared the Post Mortem Report No. 94/07 of one unknown male, which is Ex. PW17/A. He opined the cause of death was shock and hemorrhage as a result of anti mortem injuries. He further stated that after the postmortem, he handed over a sealed bundle of clothes to the constable, who accompanied the dead body.
PW 18 is Constable Jagbir Singh. He has stated that on 26.4.2007 he had taken two sealed pullandas from the MHC(M) Head Constable Vinod vide RC No. 13/21 to CFSL Chandigarh and returned a receiving copy of the same to MHC(M). Sessions Case No. 94/2008 Page 13/40 14 He further stated that the case property was not tampered with till it remained in his custody.
PW19 is Head Constable Vinod Kumar. He has stated that on 24.02.07 he was posted as MHC(M) in P.S. Gokal Puri. On that day S.I. Vijay Gupta had deposited two pullandas duly sealed with the seal of VK and it was entered by him at serial No.
735. PW19 further stated that on 02.03.07 S.I. Vijay Gupta deposited with him one vehicle No. DL6CA1714 (Duplicate number) and original number was DL1CH4524. This was a Qualis vehicle. Three sealed jamatalashi were deposited and the same was entered by him at serial no. 750.
PW19 further stated that on 26.04.07 vide RC No. 13/21, he had sent a desi Katta along with a cartridge through Ct. Jagbir to CFSL, Chandhigarh. Constable Jagbir had given back him the receiving on 27.04.07.
PW19 further stated that on 09.07.08 a sealed envelop along with the result was received from FSL, Chandigarh through Ct. Parveen. He had handed over the result to S.I. Khazan Singh.The photocopies of the relevant entries are Ex. PW19/A. Sessions Case No. 94/2008 Page 14/40 15 PW 20 is Israr Babu, Alternate Nodal Officer, Vodaphone Essar, Mobile Service Ltd. He proved the call details pertaining to the period from 01.01.2007 to 29.01.2007 of mobile No. 9899955912. The computerized copy of the same is Ex. PW20/A. PW 24 is Dr. S.S. Murthy, S.S.O. Ballistics, CFSL, Hyderabad. He received one sealed cloth parcel sealed with the seal of VK in the office of CFSL Chandigarh on 27.4.2007 through Constable Jagbir Singh. On opening the parcel, it was found to contain one country made pistol, one fired .315''/8mm rifle cartridge case and one .315'' /8mm rifle cartridge. He examined the case property and his report is Ex. PW24/A. PW 25 is B.K.Singh, Additional D.C.P. North East Distt. He stated that on 25.3.2001 he was posted as Additional D.C.P. North East. On that day, after perusing the documents of the present case i.e. seizure memo, statements of witnesses including the charge sheet u/s 173 Cr.P.C. and the ballistic examination report, he accorded sanction u/s 39 of the Arms Act for the prosecution of the accused Hirdesh @ Chhotu vide sanction order No. 4481 dated
25..3.2011 which is Ex. PW25/A. PW 21 is SI Vijay Kumar Gupta. He stated that on Sessions Case No. 94/2008 Page 15/40 16 01.02.07 he was posted at PS Gokal Puri. The investigation of the present case was marked to him. On 14.02.07 he received an information from Inter State Crime Cell that they had arrested the accused in the present case. The information was conveyed to the S.H.O. Inspector Bhakshi Ram and the investigation was taken over by him. He along with Inspector Bhakshi Ram and other police staff reached Karkardooma Courts. After taking formal permission from the court, the accused Vijay Kumar and Jaibir were arrested along with the third accused Hirdesh @ Chotu (Juvenile). Their arrest documents were prepared which are Ex. PW11/D & Ex. PW11/E. The disclosure statements of the accused were recorded which are Ex. PW11/A and Ex. PW11/B. He moved an application for TIP of accused Jaibir and Hirdesh before the court. On 21.02.07. Both the accused persons refused the TIP.
PW21 further stated that on 24.02.07 all the three accused person, who were also accompanied by Ct. Raj Kumar, Ct. Arvind and Ct. Umesh had led them to Indira Vihar, corner of Gali no. 2 where they had pointed out the place from where they had carried out the kidnapping, vide pointing out memo Ex.PW4/B. Complainant Irfan also met them at Indira Vihar and he also joined Sessions Case No. 94/2008 Page 16/40 17 the investigation. On 24.02.07 all the three accused persons had taken them to village Nabipur, Distt. Aligarh and pointed out the place where they had killed Ashraf, vide pointing out memo Ex. PW4/A. The accused persons had led them to the place where the Katta was hidden by them. They got recovered the Katta which was wrapped in a pink dirty cloth along with one live cartridge. On opening the Katta, it was also found to contain a spent shell. He prepared the sketch of the same which is Ex. PW10/A and the same was seized vide seizure memo Ex. PW10/B. PW21 further stated that thereafter they all along with the accused persons and the complainant reached P.S. Dado, Distt. Aligarh. On enquiry, they came to know that a case FIR No. 13/07 was already registered regarding murder. S.O. S.I. Ghanshyam informed them that he was also having a pullanda in case FIR No. 13/07. On the instructions of S.I. Ghanshyam the MHC(M) of P.S. Dado handed over to them the said pullanda which was taken into possession vide seizure memo Ex. PW11/F. The said pullanda was sealed with the seal of AKY. He recorded the statements of witnesses U/s 161 Cr.P.C. of complainant of case FIR No. 13/07, P.S. Dado and Vijay Singh who was the owner of the land where the dead Sessions Case No. 94/2008 Page 17/40 18 body and the Katta were recovered. They all came back to P.S. Gokal Puri. The case property was deposited in the Malkhana.
PW4 Head Constable Arvind and PW16 Head Constable Umesh Kumar have joined the investigation of this case with SI Vijay Kumar Gupta & Constable Raj Kumar on 24.2.2007. They along with the accused persons Jai Singh, Vijay Kumar and Hirdesh( who is facing trial in juvenile court ) went to Aligarh U.P. and in their presence, accused persons pointed out the place in Nabi Pur Village Jungle, where they had committed the murder of Ashraf, driver of Qualis on 21.01.2007. The pointing out memo is Ex.PW4/A. Accused Hirdesh also got recovered one country made pistol and one live cartridge. He supported the prosecution case on all the material points.
PW23 Inspector Bakshi Ram is also the Investigating Officer of the case. He conducted the investigation of the present case in the presence of S.I. Vijay Kumar Gupta and his other staff. He supported the version of PW21 S.I. Vijay Kumar Gupta. During investigation, he arrested Jai Singh @ Jaiveer, Vijay Kumar and Hirdesh @ Chotu, got conducted the TIP proceedings of accused accused Hridesh @ Chotu and Jai Singh @ Jaiveer and both the Sessions Case No. 94/2008 Page 18/40 19 accused persons refused to undergo TIP. He also recorded the disclosure statements of the accused persons. He had also received the documents pertaining to case FIR No.13/07 P.S. Dado Distt. Aligarh by post where a separate case was registered and said document were placed on the file. He sent the exhibits were to CFSL Chandigarh, obtained the result and placed it on record. He recorded the statements of witnesses, prepared the challan and thereafter filed the charge sheet in the court.
PW11 is Head Constable Raj Kumar. He has joined the investigation of this case with Inspector Bakshi Ram on 14.2.2007 & 24.2.2007. He supported the case of the prosecution on all the material points.
PW22 is S.I. Ghanshyam Singh. He stated that on 21.1.2007 he was posted as S.O. in Police Station Dado Distt. Aligarh U.P. One Vir Sahai Pradhan of Village Nabi Pur had come to the Police Station Dado and informed that some persons had thrown a dead body from TATA vehicle in the fields of one Vijay Singh. On receipt of this information, he along with his staff reached there. On reaching the spot, he found a dead body lying in the bushes in the fields of Vijay Singh. He observed a gun shot injury on the temple Sessions Case No. 94/2008 Page 19/40 20 of the dead body. At the spot, he had also met Sudan Singh, Munna Singh & Shyam Lal at the spot. Since night had descended they could not carry out any investigation. On next morning he prepared panchnama along with the site plan. The dead body was sealed and it was sent for postmortem to Aligarh Civil Hospital. After the opinion received by the doctor that death had taken place due to gun shot injury, a case vide FIR No. 13/07 was registered in Police Station Dado. The postmortem report was received on 13.07.07.
PW22 further stated that during investigation it was revealed that a case had already been registered in Delhi. All the papers were prepared and case was transferred to Delhi. He had prepared a report which was sent to the S.S.P. Aligarh, which is Ex.PW22/A. He proved the documents i.e. the case diary as Ex.PW22/B, the site plan as Ex.PW22/C, the copy of FIR as Ex.PW22/D. He had also got pamphlet Ex.PW2/B printed and pasted at various places. The local police of Police Station Gokalpuri had gone to Police Station Dado and the case property was handed over to the local police by Head Constable Dev Dutt of P.S. Dado vide Ex.PW11/F. The copy of challan is Ex.PW22/F. He had also prepared a injury sheet depicting the injuries on the dead body vide Sessions Case No. 94/2008 Page 20/40 21 Ex.PW22/G. He had also made a request to the C.M.O. Civil Hospital Aligarh for postmortem which is Ex.PW22/H. He had also sent a request to Inspector Police Line Aligarh for carrying out necessary action which is Ex.PW22/J. The postmortem report Ex. PW17/A was collected. The case property was handed over by Head Constable Dev Dutt of Police Station Dado to the police of Police Station Gokalpuri vide entry Ex.PW22/K. In a leading question of Ld. Addl. P.P. for the State, PW22 stated that he had observed entry and exit wound on the dead body He admitted that postmortem report was received by him on 28.01.2007. He also admitted that the panchnama was witnessed by Kishori Lal, Sudan Singh, Ranvir, Ramjit and Kanwar Pal.
PW12 Constable Shyam Sunder, PW14 Constable Parmod and PW15 Constable Ashok were posted at Police Station Dado Distt. Aligarh, U.P. on 21.01.2007. On that day, they have joined the investigation of this case with S.O. Ghanshyam Singh and recovered a dead body which was lying in bushes in agricultural fields of Vijay.
PW8 is SI Sanjeev Kumar. He has stated that on 14.2.2007 he was posted in Inter State Section Crime Branch, Sessions Case No. 94/2008 Page 21/40 22 Chankya Puri, Delhi. On that day, at about 8.00 a.m. he received a secret information through informer that three boys who were having a stolen vehicle i.e. Qualis would come to sell the same near Shyam Lal College at about 10.30/1100 a.m. He informed his senior officers about this information, who instructed him to take necessary action in this regard. Thereafter, he along with S.I. Ram Avtar, ASI. Rajbir, ASI Jai Singh , HC Ominder, HC Rajiv went in Government vehicle to the spot i.e. Shyam Lal College At the spot, he asked 45 passersby to join the investigation but they refused and went away without disclosing their names and addresses. At about 10.34 a.m. opposite Shyam Lal College near Bus stand, one Qualis came from flyover and they stopped the said vehicle near the bus stand. The informer told them that they were the same boys, who wanted to sell the said vehicle. They overpowered the vehicle and it was bearing registration number plate DL6CA1714. One boy was sitting in the driving seat and two boys were sitting on the back seat. They apprehended all the three boys and enquired about their names and addresses. The boy who was sitting in driving seat disclosed his name as Vijay Singh and the other two boys disclosed their names as Jai Singh @ Jaibir and Hirdesh @ Chhotu. They did not give the Sessions Case No. 94/2008 Page 22/40 23 satisfactory answer regarding the vehicle. He checked the chasis number and engine number of the said Qualis. He enquired from the Police Help Line regarding the chasis number and engine number of the vehicle and they told the actual number of the vehicle as DL1CH4524. It was also told that the said vehicle is involved in a case of Police Station Gokal Puri. He enquired from the Police Station Gokal Puri regarding the vehicle. He was told that the said vehicle was involved in case FIR No. 75/07 U/s 365 IPC. On interrogation, the accused persons disclosed that on 21.1.2007 they hired the said vehicle from Pal Motors, Shiv Vihar Tiraha, Gokal Puri for Aligarh. They also disclosed that they killed the said driver near Aligarh and his dead body was thrown at Dado, Aligarh. The disclosure statement of accused Jai Singh @ Jaibir and accused Vijay are Ex. PW8/A and Ex. PW8/B. He arrested all the three accused persons U/s 41.1 (a).Cr.P.C. Vide a kalandra Ex. PW8/C. He seized the vehicle vide memo Ex. PW8/H. Thereafter, he produced the accused persons before the Ld. M.M. along with Kalandra and other documents from where the Investigating Officer of P.S. Gokal Puri took the accused persons from the court in his custody. His statement was recorded by the I.O. on the same day at Police Station Sessions Case No. 94/2008 Page 23/40 24 Gokal Puri.
PW 9 is ASI Rajbir Singh. He has joined the investigation of the present case with SI Sanjeev Kumar, ASI Jai Singh, HC Omender. On 14.2.2007 S.I. Sanjeev Kumar arrested the accused Jai Singh, Vijay and Hirdesh along with a Qualis. He deposed on the lines of SI Sanjeev Kuamr and supported the prosecution case on all the material points.
The statements u/s 313 Cr.P.C. of both the accused were recorded. Both the accused persons denied the case of the prosecution and stated that they are innocent and falsely implicated in the present case by the police at the instance of the persons of their village, who are inimical to them as they wanted to grab their property.
In defence, the accused have examined two witnesses. DW1 is Harbir Singh. He stated that 34 years ago, in the winter season, one police car came in their village. He did not know to which State the police belonged. They were 67 persons in car. He further stated that at about 7.00 8.00 p.m., police lifted Jai Singh and Vijay from the Village. Thereafter, he came to know that accused Jai Singh and Vijay were in Tihar Jail. The accused were Sessions Case No. 94/2008 Page 24/40 25 doing their farming in the Village.
DW2 is Ashok Kumar. He stated that about four years ago, he along with Jai Singh, Vijay and other people of mohalla were warming their hands on fire. At about 8.00 p.m. one police vehicle came and lifted Jai Singh and Vijay. He was also lifted by the police. They were brought in a police station of Delhi. His father and relatives also followed them and reached at Delhi. He was detained for two days in the Police Station. His father fulfilled their demand and then he was let off. No one from the side of Jai Singh and Vijay could meet the demand made by the police, so they were not let off. Later on he came to know that they were implicated in a murder case. Some village persons who wanted to grab the agriculture land of accused Jai Singh and Vijay were having some relations in Delhi Police. have got implicated them. Prior to this, they have also implicated them in false cases at village.
I have heard Sh. Atul Kumar Srivastva Ld. Addl. P.P. for the State and Sh. N.S. Raghav Ld. Counsel for the accused persons. I have gone through the case file and case law relied upon by Ld.Counsel for the accused.
It was submitted on behalf of the State that the Sessions Case No. 94/2008 Page 25/40 26 prosecution case stands proved from the statements of witnesses. It was submitted that all the prosecution witnesses have supported the prosecution case.
It was further submitted that on 20th January 2007, the accused persons went to the travel agency which was being run under the name and style of M/s Pal Motors and booked the Qualis vehicle of the deceased Ashraf through Irfan partner of the travel agency for 21st January 2007 for going to Aligarh. It was further submitted that on 21.01.2007 at about 6.00 a.m. the accused persons have taken the deceased Ashraf with his Qualis to Aligarh and on the way they have committed the murder of Ashraf. It was further the submission of Ld. Addl. P.P. for the State that after committing the murder of deceased Ashraf the accused persons had thrown the dead body of the deceased in the jungle of Village Nabi Pur, P.S. Dado, District Aligarh, U.P. It was further submitted on behalf of the State that the deceased Ashraf along with his Qualis was taken by the accused persons from his house on 21st January 2007 at about 6.00 a.m. for going to Aligarh in the presence of his wife namely Shakeela Begum.
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It was further submitted on behalf of the State that the accused persons have pointed out the place where they had committed the murder of Ashraf.
It was submitted on behalf of the State that from the statements of witnesses, it is proved that chain of the circumstances is complete and prosecution case states proved.
On the other hand it was submitted by Ld. Counsel for the accused persons that the accused have been falsely implicated. It was further submitted by Ld. Defence Counsel that chain of circumstantial is not complete.
In this case prosecution has examined as many as 25 witnesses. The scrutiny of the prosecution evidence reveals that in the present case there is no direct evidence and prosecution case rests upon circumstantial evidence.
The Hon'ble Supreme Court in a case titled as State of Goa Vs. Sanjay Thakran and Anr 2007 (2) Crimes 294 (SC) has held that, it is well settled proposition of law that when a prosecution case rests upon the circumstantial evidence, such evidence must satisfy following tests:
(i) the circumstances from which an inference of guilt is Sessions Case No. 94/2008 Page 27/40 28 sought to be drawn, must be cogently and firstly established.
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
In a case reported as 2010 (3) JCC2361 Naveen Chauhan @ Chussi Vs. State the Hon'ble Delhi High Court has observed that in a case based purely on circumstantial evidence the prosecution needs to establish all the circumstances cogently and firmly to the full satisfaction of the court before they can be acted upon. The circumstances proved by the prosecution ought to be Sessions Case No. 94/2008 Page 28/40 29 wholly incompatible with the innocence of the accused and must necessarily and unerringly point towards him as perpetrator of the crime. The courts need to be satisfied that in all probability it was the accused and no one else who had committed the crime for which he was charged.
The Hon'ble Supreme Court in a case reported as 2010 (3) JCC1648 Musheer Khan @ Badshah Khan & Anr Vs. State of Madhya Pradesh has observed that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. The Hon'ble Supreme Court further held that when a murder charge is to be proved solely on circumstantial evidence, presumption of innocence of accused must have a dominant role.
The the Hon'ble Delhi High Court in a case reported as 2006 (1) JCC318 State through CBI Vs. Gurpal Singh has observed that in case of circumstantial evidence chain of circumstances should be unbroken. Circumstances proved must be consistent only with guilt of accused and same must be totally inconsistent with innocent of accused. Where major links between alleged offence and accused are entirely nonexistent, conviction on Sessions Case No. 94/2008 Page 29/40 30 such evidence would not be sustainable.
In a case reported as State of U.P Vs. Ashok Kumar Srivstava (1992 Crl.L.J.1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
The circumstantial evidence upon which the prosecution case is based is as under :
i ) Last Seen Evidence.
ii ) Motive.
iii) Phone Call Details
iv) Recovery of Articles.
v) Pointing out of the place by the accused persons from where the dead body was recovered.
Last seen evidence :
As per the prosecution PW2 Shakeela is a witness of the last seen. As per the prosecution story, she had seen the deceased Sessions Case No. 94/2008 Page 30/40 31 Ashraf lastly on 21.1.2007 at about 5.50 a.m. with the accused persons at her house when the accused persons have taken him along with his Qualis car for going to Aligarh. Thereafter her husband had taken his Qualis car along with the accused persons and their 3rd companion. She further stated that her husband did not return back.
The last seen theory becomes relevant when the time gap between the last seen and the death of the person is small. In the present case it is not clear as to when the deceased was killed. There is nothing on record to show that as upto what time the deceased remained in the company of the accused persons.
As per prosecution case the accused persons and the deceased were having mobile phones with them. The best evidence to collect the record of the location of the mobile phones of the accused and the deceased. This could have been very helpful to show that deceased and the accused persons were together for how long.
It is also important to be noted that as the wife of the deceased was having the knowledge that the deceased went along with the accused persons along with his Qualis car, even then she did not disclose this fact to the police for several days.
In view of the above discussion, it cannot be said as Sessions Case No. 94/2008 Page 31/40 32 upto what time the deceased was in the company of accused persons. Therefore, the last seen theory is of no help for the prosecution case.
Motive :
As per the prosecution story, on 21.1.2007 the accused persons had taken the deceased Ashraf with his Qualis for going to Aligarh. It was contended by Ld. Addl. P.P. for the State that after committing the murder of Ashraf, the accused had taken away the vehicle of Ashraf with them and they had thrown the dead body of Ashraf. Therefore, the motive of the accused was to grab the vehicle of the deceased.
As per prosecution case the accused persons took away the vehicle of the deceased on 21st January 2007 after committing the murder of deceased. The said Qualis car was recovered from the possession of accused persons on 14.2.2007. It is important to note that the said vehicle was recovered by police party headed by PW8 SI Sanjeev Kumar on 14.2.2007 from near Shyam Lal College Shahdara, Delhi. It has come on record that at the time of recovery no public witness was joined despite availability. It has also come on record that the gate of Shyam Lal College was opened at that time and the watchman was present there, but the said watchman was not Sessions Case No. 94/2008 Page 32/40 33 joined in the investigation. PW8 SI Sanjeev Kumar has admitted in his cross examination that Police Station Shahdara is at a distance of 75 meters from the place of recovery, but he did not inform the Police Station Shahdara nor he called any person from the police station to join the proceedings. Bus stand was also at a distance of 75 meters from the place of recovery, but no person from the bus stand was asked to join the proceedings. It was a day time and the public was available, but despite that no one was asked to join the proceedings.
The case of the prosecution is that one of the accused was driving the Qualis car while other accused were sitting in the said car. No effort was made to collect scientific evidence. The I.O. should have taken the finger prints from the steering wheel, gear lever and windows etc. The finger prints should have been sent to the expert for comparison with the finger prints of the accused persons.
PW22 SI Ghanshyam Singh of U.P. Police has stated that the Crime Branch Officials of Delhi Police had gone to Dado Police Station on 13.2.2007. He also admitted that SI Sanjeev Kumar ( PW8) went to P.S. Dado on 13.2.2007. He also admitted that on Sessions Case No. 94/2008 Page 33/40 34 13th /14th February 2007 his statement was recorded by SI Sanjeev Kumar.
It is also important to note that a man of ordinary prudence would not keep the robbed vehicle with him for such a long period nor he would take the vehicle to the area to which the vehicle belonged. In the present case the accused persons were having ample opportunity to dispose off the vehicle.
In view of the above discussion, in my considered opinion as the recovery of the vehicle from the possession of the accused persons becomes doubtful and therefore, no such motive as alleged by the prosecution is proved.
Phone call details :
As per the prosecution story, PW1 Smt. Shakeela tried to contact deceased Ashraf on 22.01.2007 on his mobile phone, but it was switched off. As per the version of PW7 Irfan, he received telephone calls from mobile phone on his cell phone on 21.1.2007 before 5.45 a.m. The caller of the mobile phone told his name as Jai Veer Singh regarding not reaching the taxi. PW7 told the address of the house of Ashraf where the taxi was standing. To prove the call details, the prosecution has examined PW20 Israr Babu Alternate Sessions Case No. 94/2008 Page 34/40 35 Nodal Officer, Vodafone Essar, Mobile Service Ltd. He proved the call details pertaining to the period from 01.01.2007 to 29.01.2007 of mobile No. 9899955912, the computerized copy of the same is Ex. PW20/A. The prosecution has not been able to prove as to who was the user of mobile phones regarding which call details have been produced. There is nothing on record to show that the said mobile phones were being used by the accused persons. The Investigating Officer collected the phone call detail but the same has not been proved in accordance with law as laid down by the Hon'ble Delhi High Court in the case of Mohd. Afzal Vs. State 2003 VII AD(Delhi)1.
Recovery of Articles :
It was submitted by Ld. Addl. P.P. for the State the the accused persons were apprehended by the Crime Branch officials along with the Qualis bearing registration number plate DL6C A1714 and the accused Vijay Singh was sitting in the driver seat of the said Qualis. On enquiry the actual number of the vehicle was revealed as DL1C H4524 which was involved in the present case. As per the version of PW8 SI Sanjeev Kumar, on 14.2.2007 on a Sessions Case No. 94/2008 Page 35/40 36 secret information, the accused persons were apprehended along with the said Qualis. It has been discussed above that the recovery of the Qualis car from the possession of the accused persons is doubtful.
As per the prosecution story, on 24.2.2007, the accused persons got recovered a kata which was wrapped in a pink dirty cloth with a live cartridge. On opening the katta it was found to contain on spent shell.
In my view, no accused would keep such type of evidence with him if he is involved in any crime. In my view the accused persons had ample time to dispose off the said vehicle of the deceased and the katta. No public person was joined by the I.O. at the time of recovery. The Investigating Officer Insp. Bakshi Ram (PW23) has stated in his cross examination that during the course of investigation, they did not lift any finger prints from the steering wheel of as well as from the Qualis as well as from the recovered country made pistol. Hence, the recovery of the vehicle and the pistol becomes doubtful.
The Hon'ble Delhi High Court in a case reported as 2011 (3) JCC1814 (Delhi) has held that recoveries of articles does Sessions Case No. 94/2008 Page 36/40 37 not prove the guilt of the accused.
Pointing out of the place by the accused persons from where the dead body was recovered :
It was contended by Ld. Addl. P.P. for the State that accused persons pointed out the place where the dead body of deceased Ashraf was thrown by them after committing his murder. On the other hand, it was contended by Ld. Counsels for the accused persons that the accused persons never pointed out any such place as alleged by the prosecution.
As per the prosecution story the accused persons after committing the murder of Ashraf had thrown his dead body in the jungle of Village Nabi Pur, P.S. Dado, District Aligarh, U.P. It was further submitted by Ld. Defence Counsel that the public witnesses PW5 Bir Shahai and PW6 Vijay Singh have not supported the prosecution case.
The perusal of statement of PW5 Bir Shahai reveals that he informed the police of Police Post Sankra, U.P. regarding the dead body. Local police came at the spot and he had taken the dead body from the Village to the Police Station. He denied that on 21.1.2007 at about 4.30 p.m. one TATA 407 of sky blue colour came Sessions Case No. 94/2008 Page 37/40 38 from Sankra side and came near the fields of Vijay singh and they stopped the vehicle or that 34 persons were sitting in the TATA407 or that they threw a dead body in the field and left for Kashganj side.
In his cross examination, he has stated that Vijay Singh came to his house and told him about lying of a dead body in his fields. The shirt of the dead body was blood stained. PW6 Vijay Singh has stated that neither he was interrogated by the police nor his statement was recorded.
The perusal of testimony of PW22 S.I. Ghanshyam Singh, who was posted as S.O. in Police Station Dado Disttt. Ali U.P. reveals that on 21.1.2007 he received an information that some persons had thrown a dead body from TATA 407 vehicle in the field of one Vijay Singh. He reached at the spot and found a dead body lying in the fields of Vijay Singh in the bushes. He got a case registered vide FIR No. 13/2007 in Police Station Dado. The perusal of testimony of PW22 SI Ghanshyam Singh further reveals that a case in Delhi had already been registered. He handed over all the documents to the I.O. of the present case.
The perusal of testimony of PW22 SI Ghanshyam Singh shows that he admitted in his cross examination that on Sessions Case No. 94/2008 Page 38/40 39 13.2.2007 Insp. Sanjeev Kumar from Crime Branch Delhi went to Police Station Dado. He stated that he cannot say if the Crime Branch Officers had also visited Police Station Dado on 12.2.2007.
It is important to note that when the police officials of Delhi Police have gone to P.S. Dado on 13.2.2007. Therefore, it is clear that prior to the arrest of the accused persons the police officials of Delhi Police were having knowledge about the place from where the dead body was recovered. Therefore, in my view, the story of the prosecution that the accused have pointed out the place where the dead body was thrown by them is without any merit as the Delhi Police had already seen the said place. The Delhi Police was already aware of the place from where the dead body was recovered, even before the arrest of the accused. Hence, under these circumstances,the pointing out of the place after making the disclosure by the accused persons is of no help. It is not a discovery of a fact rather it is a rediscovery of the fact.
It was held by Hon'ble Delhi High Court in a case titled as Raj Mani Vs. State 1997(2) C.C.Cases 101 (HC) that discovery of a fact known to the police is inadmissible.
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Therefore, in view of the judgment referred above the pointing out of the place by the accused persons from where the dead body was recovered, is of no help to the prosecution case.
In view of the above discussion and case law discussed above, I am of the considered view that prosecution has failed to prove its case against the accused persons as the chain of circumstantial evidence is not complete. Accordingly, all the accused persons are acquitted for the offences charged with.
The bail bonds of all accused persons are cancelled. Their sureties are charged. The file be consigned to Record Room. Announced in Open Court on 21st September 2011 ( Surinder Kumar Sharma) Addl. Sessions Judge/North East KKD, Delhi.
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