Delhi District Court
State vs 1. Ravinder @ Raju (On Bail) on 26 September, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 53(I)/08 FIR No. : 40/07 PS : Karawal Nagar U/Sec. : 363/302/120-B/34 IPC Case ID : 02402R0112922008 State Versus 1. Ravinder @ Raju (on bail) S/o Sh. Dhir Singh R/o 06/19, Krishna Colony, Behind Khatla Mandir, Railway Road, Palwal, Haryana 2. Karamveer (on bail) S/o Sh. Veer Pal R/o Gali No. 1, Maharam Mohalla behind Dispensary, Shahdara, Delhi 3. Usha (on bail) W/o Sh. Harkesh R/o Kumhar Colony, Sewadham, Loni, U.P. Date of Institution : 23.04.2008 Date of reserving order : 29.06.2015 Date of Judgment : 26.09.2015 JUDGMENT
1. The accused Ravinder @ Raju, Karamveer and Usha are accused of conspiracy and murder of Tarun @ Golu between 19.05.2005 to 20.05.2005 in the fields of Village Mandola, PS Loni, U.P. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 1 of 41 The prosecution case:
2. On 20.05.2005 at 7.30 p.m., a PCR call was received in PS Gokalpuri through wireless operator that he received a message from Ct. Harsh, Channel Operator that PW-3 Smt. Mithlesh informed through telephone No. 22934450 that Tarun @ Golu S/o Sh. Omkar R/o Gali No. 3, Phase-4, Shiv Vihar, Karawal Nagar, age 16 years was missing since 19.05.2005 at 4.30 p.m. The said PCR call was recorded in the roznamcha register vide DD No. 23A and a true copy thereof Ex.PW13/A was given to PW-13 ASI Bhim Singh for appropriate action.
(Note: It would be relevant to mention that in the charge-sheet, it is stated that on 20.05.2005, Omkar Dubey given information in PS Gokalpuri that his son Tarun @ Golu, age 15 years was missing since 19.05.2005 at 4.30 p.m. vide DD No. 23A)
3. On receipt of a copy of DD No. 23A, PW-13 ASI Bhim Singh with Ct. Brijbir reached at H. No. 151, Gali No. 3, Phase-5, Shiv Vihar, Karawal Nagar, Delhi where he met PW-2 Omkar Dubey who stated that his son Tarun @ Golu, age 15 years was missing since 19.05.2005 at 4.30 p.m. He filled the missing form. He informed the Police Control Room (PCR). WT Message to all SSP's and DCP's in India and all SHO's in Delhi was sent. He asked PW-2 Omkar Dubey to provide photograph of his missing son for publication. He informed the facts and circumstances of the case to SHO. He kept DD No. 23A pending for further action.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 2 of 41
4. On 20.05.2005 at 10.20 p.m., PW-13 ASI Bhim Singh with Ct. Brijbir returned to PS Gokalpuri and recorded the above mentioned proceedings in the roznamcha register vide DD No. 81B and a true copy thereof is Ex.PW13/B.
5. According to the charge-sheet, whereabouts of Tarun @ Golu could not be ascertained despite several efforts.
6. On 10.10.2007, PW-2 Omkar Dubey made a complaint Ex.PW2/B to the SHO, PS Gokalpuri, Delhi which is translated as under:-
"To The SHO, PS Gokalpuri, Delhi.
Sir, Submitted that I, Omkar Dubey S/o Sh.
Radha Kishan Dubey is a resident of H. No. 151, Gali No. 3, Phase-5, Shiv Vihar, Delhi. My son Tarun @ Golu who is 16 years old, missing from his house since 19.05.2005. I had given information to the police regarding missing of my son at 100 on 20.05.2005. I have been searching him. Till date, nothing could be known about my son. Now, I am certain that Usha W/o Harkesh, a resident of my locality, who has shifted to Loni after selling his house, and her family members and relatives are involved in kidnapping of my son. My son may kindly be traced and legal action be taken against them.
Sd/-
Omkar Dubey"
7. The complaint Ex.PW2/B was marked to PW-5 ASI Subhash Chand. He made enquiry from PW-2 Omkar Dubey / complainant. He made endorsement Ex.PW5/A. He prepared tehrir. At about 11.25 p.m., he handed over the tehrir to PW-4 Ct. Rajinder for registration of FIR in PS Karawal Nagar.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 3 of 41
8. On 10.10.2007 at about 11.35 p.m., PW-8 HC Durvesh Kumar, Duty Officer, PS Karawal Nagar recorded kayami DD No. 23A and thereafter, he recorded FIR No. 40/2007 under section 363 IPC and carbon copy thereof is Ex.PW8/A. He made endorsement Ex.PW8/B on the tehrir regarding registration of FIR. He handed over a copy of FIR alongwith tehrir to PW-11 SI Rajesh Dogra in the police station for further investigation.
9. During investigation, on 11.10.2007, PW-11 SI Rajesh Dogra recorded statement of PW-5 ASI Subhash Chand, PW-4 Ct. Rajinder, PW-2 Omkar Dubey, PW-3 Smt. Mithlesh and PW-7 Kishan Kant.
10. On 11.10.2007 at about 8.45 p.m., PW-9 ASI Hari Kishan received an information from a secret informer in the office of Special Staff, South West District, Delhi as under:-
"At 8.45 p.m., I received a secret information from a secret informer in the office of Special Staff / SW that 2 ½ years ago, a boy namely Golu was murdered after kidnapping in the fields of Village Mandola who was cremated after proceedings under section 174 of the Cr.P.C. for want of identification. In that regard, a case has been registered in PS Karawal Nagar. The accused Ravinder @ Raju, a resident of Palwal and Karamveer, a resident of District Buland Shahar, wanted in the case of kidnapping and murder of Golu, committed the offence with his relatives and they have been shifting their residence in order to prevent their apprehension. They would be visiting Sagarpur, Brahmpuri, Dabri, Delhi in search of a house. If the said wanted criminals could be apprehended, the case of kidnapping and murder of Golu could be solved. A woman namely Usha could be with them."
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 4 of 41
11. PW-9 ASI Hari Kishan brought the secret information to the notice of Insp. Vijay Singh Chandel, Special Staff, South West and Sh. D.K. Gupta, ACP/ Opr. Cell/ SW who directed him to constitute a raiding team and verify the secret information. He recorded the said secret information in the roznamcha register vide DD No. 12 and a true copy thereof is Ex.PW9/A.
12. PW-9 ASI Hari Kishan constituted a raiding team comprising SI Ashok Kumar, HC Rajinder, HC Raj Kumar, HC Ravinder Pal, HC Sheel Kumar, Ct. Naveen Kumar, Ct. Vijay Kumar, PW-15 Ct. Subhash Chand and the secret informer. He alongwith the raiding team under the supervision of Insp. Vijay Singh Chandel and L/HC Sunita departed from the office of Special Staff in Government Vehicles at about 9.00 p.m. and reached at Brahmpuri, Pankha Road near a juice corner where he with the assistance of the raiding team apprehended Sanjay @ Bhura and Karamveer on the pointing out of the secret informer. He interrogated them. The accused Sanjay @ Bhura and Karamveer disclosed that their relatives namely the accused Usha and Ravinder @ Raju were waiting for them at Kailashpuri Bus Stand Chowk after finalising a house. PW-9 ASI Hari Kishan alongwith the raiding team, the accused Sanjay @ Bhura and Karamveer reached at Kailashpuri Bus Stand Chowk where the accused Sanjay @ Bhura identified the accused Usha and Ravinder as their relatives who were standing on the side of the road. He with the assistance of the raiding team apprehended them.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 5 of 41
13. PW-9 ASI Hari Kishan interrogated them. The accused persons disclosed that 2 ½ years ago, Bittu son of Usha was murdered. All of them and Bunty S/o Usha kidnapped Golu and murdered him in the fields of Vill. Mandola, U.P. by stabbing him with a knife to take revenge of the murder and they left his dead body in the said field and they have come to know that Omkar Dubey, father of Tarun @ Golu have filed a petition against them before the Delhi High Court and he has got registered a case against them in PS Karawal Nagar.
14. PW-9 ASI Hari Kishan came to know, on enquiry, that PW-2 Omkar Dubey have got registered a case in respect of kidnapping of his son Tarun @ Golu vide FIR No. 40/07 date 10.10.2007 under section 363 IPC at PS Karawal Nagar against the accused Usha and his relatives.
15. On 11.10.2007 at 9.50 p.m., PW-9 ASI Hari Kishan arrested the accused Karamveer and Sanjay @ Bhura at Brahmpuri Chowk, Pankha Road. He prepared arrest memo Ex.PW9/B and personal search memo Ex.PW9/E in respect of the accused Karamveer. He recorded disclosure statement of the accused Karamveer Ex.PW9/H.
16. On 11.10.2007 at 10.20 p.m., PW-9 ASI Hari Kishan arrested the accused Usha and Ravinder @ Raju at Bus Stand, Kailashpuri Chowk vide arrest memo Ex.PW9/C and Ex.PW9/D and personal search memo Ex.PW9/F and Ex.PW9/G respectively. He recorded disclosure statements of the accused Usha Ex.PW9/J and the accused Ravinder @ Raju Ex.PW9/K. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 6 of 41
17. PW-9 ASI Hari Kishan communicated the information regarding arrest of the accused Karamveer, Sanjay @ Bhura, Ravinder @ Raju and Usha to ACP/ Opr. and their relatives. He brought the accused persons to his office and deposited the personal search articles in the police malkhana. He alongwith the accompanying police team and Insp. Vijay Singh Chandel and the accused persons proceeded for further investigation at 11.55 p.m. on 11.10.2007 vide arrival/ departure entry DD No. 45A Ex.PW9/M.
18. On 12.10.2007, PW-9 ASI Hari Kishan alongwith police team and the accused persons reached at Vill. Mandola. He prepared fard nishandehi of place of incident Ex.PW15/A on the pointing out of the accused persons. He reached at PS Kotwali, Loni, District Ghaziabad, U.P. He collected three photographs of the deceased from Ct. Rajneesh, PS Kotwali vide Ex.PW2/A. He collected inquest papers. PW-2 Omkar Dubey identified the dead body of Tarun @ Golu in the three photographs mark A to C.
19. On 12.10.2007 at 10.30 a.m., PW-9 ASI Hari Kishan communicated the information regarding arrest of the accused Ravinder @ Raju, Usha, Sanjay @ Bhura and Karamveer to the Duty Officer, PS Karawal Nagar. He prepared kalandara under section 41.1 (A) of the Cr.P.C. Ex.PW9/N and produced the accused persons before the Court of Ms. Anu Grover Baliga, Ld. MM, Patiala House Court on 12.10.2007.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 7 of 41
20. On 12.10.2007 at 10.30 p.m., PW-1 ASI Darshan Singh, Duty Officer, PS Karawal Nagar received a call from PW-9 ASI Hari Kishan, Special Staff, South West District that he arrested the accused Ravinder @ Raju, Usha, Sanjay @ Guddu and Karamveer under section 41.1 of the Cr.P.C. and they have disclosed their involvement in FIR No. 40/07 under section 363 IPC PS Karawal Nagar and he requested that the Investigating Officer of the case be sent. He recorded the said information in the roznamcha register vide DD No. 6A and a true copy thereof is Ex.PW1/A. He handed over a copy of DD No. 6A to PW-11 SI Rajesh Dogra for appropriate action.
21. PW-11 SI Rajesh Dogra reached at the office of Special Staff, District South West. He collected copy of kalandara under section 41.1 of the Cr.P.C., disclosure statements, inquest papers regarding the dead body of the deceased Tarun @ Golu, photographs and post-mortem report vide seizure memo Ex.PW11/A and Ex.PW11/B.
22. On 13.10.2007, PW-11 SI Rajesh Dogra moved an application before the Court of Area Magistrate for issuance of production warrant in respect of the accused persons.
23. On 15.10.2007, PW-11 SI Rajesh Dogra arrested the accused Ravinder @ Raju vide arrest memo Ex.PW11/C. He arrested the accused Karamveer vide arrest memo Ex.PW11/D and the accused Usha vide arrest memo Ex.PW11/E. He obtained one day police remand.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 8 of 41
24. Section 302/34 IPC was added in this case and further investigation of the case was taken over by PW-16 Insp. Sukhbir Singh, SHO, PS Karawal Nagar.
25. During investigation, PW-16 Insp. Sukhbir Singh interrogated the accused persons. He prepared the unscaled site plan Ex.PW16/A at the instance of PW-14 Sukhbir, a resident of Village Mandola. PW-17 SI Mukesh Kumar Jain, Draftsman prepared the scaled site plan of the place of incident Ex.PW16/B. The knife, chunni and Auto- rickshaw (TSR) used in the offence could not be recovered.
26. On 11.01.2008, the accused Ravinder @ Raju, Karamveer, Sanjay @ Bhura @ Guddu and Usha were charge- sheeted under section 363/302/120-B IPC.
27. Vide order dated 11.03.2008, the accused Sanjay @ Guddu was declared juvenile and his case was referred to the Juvenile Justice Board.
28. On 23.04.2008, this case was assigned to this Court by the Ld. District & Sessions Judge for trial.
29. In the meanwhile, the 5th accused Padam @ Banty was also apprehended. The challan in his respect was filed before the Juvenile Justice Board.
30. On appraisal of the material on record, the accused Ravinder @ Raju, Karamveer and Usha were charged under section 302/120-B IPC to which they pleaded not guilty and claimed trial.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 9 of 41
31. During the trial, the prosecution examined 17 witnesses, as under:-
The witnesses Description of the witnesses PW-1 ASI Darshan Singh Duty Officer, PS Karawal Nagar PW-2 Omkar Dubey Complainant/father of the deceased PW-3 Smt. Mithlesh Mother of the deceased PW-4 HC Rajinder Taken rukka to PS Karawal Nagar PW-5 SI Subhash Prepared tehrir PW-6 SI Vikram Singh Duty Officer, PS Gokalpuri PW-7 Kishan Kant Uncle of deceased PW-8 ASI Durvesh Kumar Duty Officer, PS Karawal Nagar PW-9 ASI Hari Kishan In-charge, Raiding Team, Spl. Staff, S/W PW-10 SI Madan Singh Som Conducted proceedings u/s. 174 Cr.P.C.
PW-11 SI Rajesh Dogra Ist Investigating Officer, PS Karawal Nagar PW-12 Dr. Om Narain Conducted Post-mortem on the dead body Pandey of the deceased Tarun @ Golu PW-13 ASI Bhim Singh Enquiry Officer PW-14 Sh. Sukhbir Panch witness PW-15 HC Subhash Chand Member of the raiding team PW-16 Insp. Sukhbir Singh IInd Investigating Officer PW-17 SI Mukesh Kumar Draftsman, North-East District, Delhi
32. Incriminating circumstances were put to the accused Karamveer, Usha and Ravinder @ Raju as required under section 313 of the Cr.P.C.
33. The accused Karamveer denied the incriminating circumstances appearing against him. He claimed false implication and innocence. He stated that he was picked from his house in Meet Nagar, Delhi and implicated in this case. He stated that his signatures were taken on blank & printed papers.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 10 of 41
34. The accused Usha claimed false implication and pleaded innocence. She stated that her son was murdered and the accused persons in that case were convicted by the trial Court. She stated that she was picked from her house by police officials on the pretext of making some enquiry and her signatures were taken on blank and printed papers. She was called by the police officials for enquiry of the case pertaining to the murder of her son and thereafter, she was involved in this case. She stated that she was apprehended 2-3 days before the date of production before the Court. She stated that the complainant and police officials falsely involved her and her distant relatives to solve this case.
35. The accused Ravinder @ Raju claimed false implication and pleaded innocence. He stated that he was picked from his house in Pratap Nagar. He met the co-accused Usha, Karamveer and Sanjay @ Guddu in the office of Crime Branch, Dhaula Kuan, Delhi. He stated that they were apprehended 2-3 days before the date of their production before the Court. He stated that his signatures were taken on some printed and blank papers. He stated that he was called by the police for making enquiry regarding the murder of son of the co-accused Usha.
36. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. Rajiv Saraswat, Advocate for the accused Ravinder @ Raju, Karamveer and Usha.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 11 of 41
37. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the prosecution has proved the motive of the commission of the offence. He submitted that on 28.03.2005 at 7.30 p.m. in Gali No. 1, Chaman Park, Delhi, Raju Totewala and his associates murdered Satish @ Bittoo son of the accused Usha and case FIR No. 180/05 under section 307/341/302/34 IPC was registered at PS Gokalpuri Ex.PW6/A on 28.03.2005 at 10.20 p.m. He submitted that Tej Prakash @ Kallu son of Omkar Dubey/ complainant and Padam @ Banty son of the accused Usha also received injury in the said incident. He submitted that the accused Usha suspected that Tej Prakash @ Kallu colluded with the accused party in that case and therefore, the accused Usha intended to take revenge. He submitted that the prosecution has proved that on 19.05.2005 at 4.00 p.m., Padam @ Banty and Sanjay @ Guddu had taken the deceased Tarun Kumar from his house and thereafter, he never returned.
He submitted that Padam @ Banty is the son of the accused Usha. He submitted that the accused persons led to the place of incident in the agricultural fields of Village Mandola, PS Loni, District Ghaziabad where the dead body of the deceased Tarun @ Golu was found on 20.05.2005. He submitted that the accused persons absconded from their houses after commission of the offence and they were apprehended by the Special Staff. He submitted that post-mortem report Ex.PW12/A prove that the death of Tarun @ Golu was homicidal. He submitted that prosecution has proved the charges.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 12 of 41
38. Sh. Rajiv Saraswat, Advocate for the accused Ravinder @ Raju, Karamveer and Usha submitted that there is unexplained delay of 2 ½ years in the registration of FIR. He submitted that the prosecution has not brought any evidence on record which prompted the PS Karawal Nagar to register FIR on 10.10.2007. He submitted that no incriminating material was recovered from the accused persons. He submitted that the photographs of the dead body mark A to C were already collected by the police officials of Special Staff, South West, Delhi on 09.10.2007. He submitted that the evidence of PW-3 Smt. Mithlesh shows that the photographs were already with the police on 07.10.2007. He submitted that the police had already discovered of the place of incident and the photographs of the deceased. He submitted that the presence of PW-7 Kishan Kant in the house of the complainant is doubtful. He submitted that PW-7 Kishan Kant has not stated anything against the accused persons. He submitted that the evidence regarding identification of the place of recovery of the dead body of the deceased and photographs was fabricated to connect the accused persons with the offence. He submitted that the accused persons have been falsely implicated in this case. He submitted that this fact is evident from a perusal of DD No. 45A dated 11.10.2007 Ex.PW9/N wherein PW-9 ASI Hari Kishan recorded that the accused persons were involved in FIR No. 40/07 dated 10.10.2007 under section 363 IPC PS Karawal Nagar whereas he did not make any enquiry from the police station.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 13 of 41
(a) The death of the deceased Tarun @ Golu was homicidal:
39. On 20.05.2005 at about 6.00 a.m., PW-14 Sh.
Sukhbir, resident of Village Mandola, U.P. went to attend the call of nature. He found a dead body in the field of Sh. Kishanbir Tyagi. He informed the local police.
40. PW-10 SI Madan Singh Som, PS Loni, Ghaziabad conducted inquest proceedings. The photographer taken photographs mark A to C of the dead body of the deceased. He shifted the dead body of the deceased to MMG Hospital, Ghaziabad, U.P. The dead body could not be identified. Inquest papers are Ex.PW10/A. He made request for post-mortem on the dead body of the deceased vide Ex.PW10/B.
41. On 20.05.2005, PW-12 Dr. Om Narayan Pandey, Senior Medical Officer, District Hospital, Ghaziabad, U.P. conducted post-mortem on the dead body of the deceased Tarun @ Golu. The dead body was one day old.
42. According to the post-mortem report Ex.PW12/A, there were following ante-mortem injuries:
(i) Abrasion 25 cm x 6 cm on and around the neck. On dissection subcutaneous tissue and muscles under injury shows echymosed tracheal rings and hyoid bond found fracture. Tracheal mucosa shows highly congestion;
(ii) Incised wound 4 cm x 2 cm x abdominal cavity deep on the interior wall of abdomen. 1 O'clock position, 4 cm away from umbilicus. Intestine protruded out of the wound.
43. The cause of death of the deceased Tarun @ Golu was asphyxia as a result of strangulation.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 14 of 41
44. It is therefore, evident that the death of the deceased Tarun @ Golu was homicidal.
45. It is further evident that the death of the deceased Tarun @ Golu was caused as a result of strangulation and therefore, the death of the deceased Tarun @ Golu was caused with the intention to cause death. It was a murder.
(b) Whether the accused persons caused death of the deceased Tarun @ Golu:
46. There is no direct evidence. The case of the prosecution is based on circumstantial evidence. The prosecution relied on motive/ previous enmity, last seen evidence, absconding, discovery of place of incident and photographs of the deceased Tarun @ Golu pursuant to the disclosure statements of the accused persons.
(i) Motive/ previous enmity:
47. The prosecution examined PW-2 Omkar Dubey and PW-3 Mithlesh, parents of the deceased Tarun @ Golu and PW-7 Kishan Kant, maternal uncle of the deceased Tarun @ Golu to prove the motive/ previous enmity.
48. PW-2 Omkar Dubey stated as under:
"There was no previous enmity between me and the accused persons. Since, the son of accused Usha had been murdered and accused Usha had suspicion over my son for the said murder and in that murder case, my son Tej Prakash @ Kallu and one Padam son of accused Usha also received injuries on their person in the said murder case and due to that reason my son was kidnapped by the accused persons and was murdered by the accused persons.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 15 of 41
49. PW-3 Mithlesh, mother of the deceased has not stated anything regarding motive/ previous enmity in her examination-in-chief. In her cross- examination by Ld. Addl. PP for the State, she stated as under:
"My statement was recorded by the police officials on 11.10.2007. I had not stated to the police on 28.03.05, Rajkumar and his friends had attacked my son Tej Prakash @ Kallu, Bittu and Banti sons of accused Usha and in this regard case FIR No. 180/05 U/s. 341/302/307/34 IPC of PS Gokalpuri was registered. It is incorrect that my son was also accused in that case. Confronted with the portion A to A of the statement Ex.PW3/A where it is so recorded..... It is correct that in the year 2006 during a quarrel between Usha and my son, Usha told me that she had already got killed one of my and she will also get the other son killed....."
In her cross- examination by the defence, she stated as under:
.....I had not lodged any complaint to the police about the threat given by accused Usha to get my second son killed.....The accused Usha used to quarrel with us on several previous occasions but I do not remember the dates of previous quarrel. I had not lodged any complaint to police about previous quarrel. It is correct that the accused persons used to quarrel with us on the allegations that we have got their son killed, in respect of which case FIR 180/05 was registered at PS Gokalpuri. I had the knowledge about the said case....."
50. PW-7 Kishan Kant, maternal uncle of the deceased has not stated anything in this regard in his examination-in- chief. In his cross- examination by Ld. Addl. PP for the State, he stated as under:
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 16 of 41 ".....It is correct that I had told the police that on 28.03.2005 a quarrel took place between Raj Kumar @ Tote Wala alongwith his friends with my nephew Tej Prakash @ Kallu, my neighbour Satish @ Bittu S/o Usha, accused present in the Court and one Pawan @ Banti. It is correct that in that quarrel Satish @ Bittu S/o Usha (accused present in the Court) had expired and in this regard case FIR No. 180/05 PS Gokalpuri was registered. It is correct that the above case was registered on the basis of the complaint of my nephew Tej Prakash @ Kallu. It is correct that thereafter, accused Usha and her relatives suspected us for mixing with the accused persons in that case."
51. PW-6 SI Vikram, Duty Officer, PS Gokalpuri proved registration of FIR No. 180/05 under section 302/307/341/34 IPC at PS Gokalpuri on 28.03.2005 at 7.30 p.m. and a copy thereof is Ex.PW6/A.
52. From the evidence of PW-2 Omkar Dubey, it emerged that the accused Usha had suspicion on his son Tej Prakash @ Kallu for the murder of her son Satish @ Bittu. Smt. Mithlesh has not stated anything in this regard. PW-7 Kishan Kant stated that the accused Usha had suspicion that Tej Prakash @ Kallu colluded with the accused party in FIR No. 180/05 PS Gokalpuri.
53. From a perusal of the copy of FIR No. 180/05 under section 302/307/341/34 IPC PS Gokalpuri, it is seen that the said FIR was lodged on the complaint of Tej Prakash @ Kallu. It is evident from the said FIR and statement of PW-2 Omkar Dubey that Tej Prakash @ Kallu also received injuries in that case. He was the star witness of the prosecution in the case of murder of Satish @ Bittu S/o the accused Usha.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 17 of 41
54. There is nothing on record that Tej Prakash @ Kallu had not supported the case of the prosecution in the case FIR No. 180/05 under section 302/307/341/34 IPC PS Gokalpuri.
55. The prosecution has not proved the proceedings in the said FIR relating to the examination of Tej Prakash @ Kallu.
56. According to PW-3 Mithlesh, the accused Usha stated in a quarrel in 2006 that she got her one son killed and she would also get her another son killed. However, she did not make any complaint in this regard to the police station. She admitted that she did not lodge any complaint with the police regarding the threat extended by the accused Usha.
57. It would be relevant to note that this fact does not find mention in the complaint Ex.PW2/B.
58. The prosecution has failed to prove the motive/ previous enmity between the accused persons and Tej Prakash @ Kallu son of the complainant and brother of the deceased Tarun @ Golu.
(ii) Last seen evidence:
59. PW-2 Omkar Dubey, father of the deceased Tarun @ Golu/ complainant stated as under:-
"On 19.05.2005 when I came back to my house from my job in the evening I found that my son Tarun @ Golu, aged about 16 years, was missing. I searched for my son Tarun in my relations and in the locality but he could not be traced.
On 20.05.2005, I made a call at number 100 regarding missing of my son. PCR came and thereafter local police also reached and then I went to the police station and lodged the missing report of my son Tarun. Thereafter, we searched for Tarun, but he could not be traced.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 18 of 41 After 2/4 days I came to know that my son had been kidnapped by Bunti, Sanjay and Usha. Accused Usha is present in the Court today. I told this fact to the police, but no action was taken by the police. I continued visiting the police station for about two years and kept searching for my son Tarun, but all in vain. Thereafter I went to the High Court and filed a petition against Bunti, Usha, Yadram and Rakesh....."
In his cross- examination by Ld. Addl. PP for the State, he stated as under:
"It is correct that my statement was not recorded in the police station on 10.10.2007. However, I had given written complaint addressed to the SHO PS Gokalpuri and same is Ex.PW2/B which bears my signatures at point A. It is further correct that on the basis of my said complaint, the case FIR was registered on 10.10.2007. After making a call at number 100, I went to the police station and my missing report was lodged but no copy thereof was handed over to me."
In his cross- examination by Ld. defence counsel, he stated as under:
".....I went to the PS on 20.05.2005 at about 4.00 p.m. On that day, a missing report was lodged by me, but no written complaint was lodged. I had also informed the ACP & DCP of the area about the incident and inaction of the police of the concerned PS. I had not given any written complaint to them. I am not in possession of my petition filed before the Hon'ble High Court. I had visited the PS on several occasions of my own. I was also called by the police officials to the PS on some occasions....."
60. PW-3 Mithlesh, mother of the deceased Tarun @ Golu deposed as under:-
"On 19.05.2005, Banti and Kadam called my son Tarun Kumar @ Tej Prakash @ Kallu from my house and took my son in their motorcycle at about 4 p.m. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 19 of 41 Accused Banti and Guddu are not present in Court today. I can identify them if produced before me. My son has not returned till next day. I went to house of accused Usha present in the Court and enquired about my son. At that time, Pawan @ Banti and Guddu was also present in the house of Usha. Both Pawan and Guddu told me that they left my son after some time and they do not know the whereabouts of my son after that. I called number 100. PCR Police came to my house and made enquiry from me and thereafter they left....."
In her cross- examination by Ld. Addl. PP for the State, she stated as under:
".....I do not remember whether I visited accused Usha on 19.05.05 or not. Where I found Smt. Usha, her relative Karambir, Nephew Guddu and another relative Ravinder and they were talking each other. Again said the above persons were talking each other in the house of accused Usha and on seeing me they stopped talking. It is correct that on 18.05.2005 when Tarun @ Golu went with Padam @ Banti at that time my brother-in-law Krishan Kant was also present there."
In her cross- examination by Ld. defence counsel, she stated as under:
"The accused present in the Court today have not visited my residence on 19.05.05. I had visited the house of accused Usha on 20.05.05 in the morning. Confronted with the statement Ex.PW3/A where the date of visit to the house of the accused Usha, 19.05.05 is mentioned. I had not seen the number of the motorcycle. I do not remember its colour. I had not disclosed the registration number or the colour of the motorcycle to the police officials. I do not remember about the colour wearing clothes of my son.....
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 20 of 41 .....I had informed the police on 20.05.2005 in the morning but I do not remember the exact time. On 20.05.05, my husband had returned back at about 10 p.m. My husband has not called the police. I had never visited the police station. The police officials visited in my residence at about 3-4 p.m. for the first time....."
61. PW-7 Kishan Khant, paternal uncle of the deceased Tarun @ Golu stated as under:-
"On 19.05.2005, my nephew Tarun @ Golu was taken by Padam @ Banti at about 4.00/ 4.30 p.m. from my house. From that day, my nephew Tarun has not returned till date. I do not know anything more about this case."
In his cross- examination by Ld. Addl. PP for the State, he stated as under:
"My statement was recorded by the police in this case on 11.10.2007.....
It is correct that on 19.05.2005 at about 4.30 p.m., I was present in the house of my brother Omkar and my sister in law (Bhabhi) was also present there. It is correct that at that time, Padam @ Banti S/o accused Usha, present in the Court today, and took my nephew Tarun @ Golu with him on his motor bike. It is correct that from that date my nephew Tarun @ Golu had not returned back."
In his cross- examination by Ld. defence counsel, he stated as under:
"On 19.05.2005, I was present in the house of my brother Omkar. My brother Omkar was also present in his house, on that day, as he was having injuries on his knee. I do not remember the registration number of the motor bike by which, Padam @ Banti took my nephew Tarun @ Golu. But, the colour of the motorcycle was yellow and was Freedom motorcycle.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 21 of 41 I had not told the colour of the motorcycle to the IO in my statement. Vol. He had not asked for the same. I do not remember the date on which my statement was recorded. I had not read over my statement. After the incident, police visited our house, several times. I had accompanied my brother Omkar to police station, at the time of filing of complaint on 19.05.2005. The back door of accused Usha was facing my front door, at that time. On 19.05.2005, accused Usha had visited our house, at about 10.00/ 11.00 a.m. I had not told the above fact to the police as they had not asked me. Vol. Usha used to visit our house frequently, during those days....."
62. According to PW-2 Omkar Dubey, he made a call at 100 and lodged missing report. He stated that he went to the police station on 20.05.2005 at 4.00 p.m. He stated that on that day, he lodged a missing report with the police. PW-3 Mithlesh stated that she called at 100 and PCR officials reached at her house and after making an enquiry, they left. She has not stated that her husband Omkar Dubey accompanied the police official to the police station. She stated that her husband did not call the police. There is no missing report on the file. It is evident that PW-3 Mithlesh made a call at 100 on 20.05.2005 at 7.30 p.m. Pursuant to the said PCR call, DD No. 23A Ex.PW13/A was recorded. PW-13 ASI Bhim Singh was entrusted the said DD. He reached the house of PW-2 Omkar Dueby. He returned to the police station on 20.05.2005 at 10.20 p.m. and entered the proceedings in the roznamcha register vide DD No. 81B Ex.PW13/B. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 22 of 41
63. It is evident from a reading of deposition of PW-2 Omkar Dubey that on 19.05.2005 at 8.30 p.m., he returned to his house from his office. He searched his son Tarun @ Golu in his relation and locality. On 20.05.2005, after the PCR call, he searched his son Tarun @ Golu. However, he has not stated that PW-3 Mithlesh and PW-7 Kishan Kant told him that on 19.05.2005 at 4.00 p.m./ 4.30 p.m., the co-accused Padam @ Banti had taken the deceased Tarun @ Golu from his house.
64. According to PW-2 Omkar Dubey, after 2-4 days, he came to know that his son was kidnapped by Padam @ Banti, Sanjay @ Guddu and Usha. However, he has not stated the source of his information.
65. PW-2 Omkar Dubey is the complainant in this case. The complaint was lodged on 10.10.2007 in PS Gokalpuri after 2 ½ years from the date of incident. However, he did not mention in his complaint Ex.PW2/B that on 19.05.2005 at 4.00/ 4.30 p.m., Padam @ Banti had taken his son Tarun @ Golu from his house on his motorcycle.
66. DD No. 23A Ex.PW13/A was recorded pursuant to the PCR call made by PW-3 Mithlesh. PW-3 Mithlesh informed that her son Tarun @ Golu was missing since 19.05.2005 at 4.30 p.m. She did not state that on 19.05.2005 at 4.00 / 4.30 p.m., Padam @ Banti had taken his son Tarun @ Golu from her house on his motorcycle.
67. DD No. 81B Ex.PW13/B is the enquiry report. This fact is not also mentioned in DD No. 81B Ex.PW13/B. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 23 of 41
68. PW-7 Kishan Kant is a planted witness. According to him, on 19.05.2005 at about 4.00/ 4.30 p.m., Padam @ Banti had taken his nephew Tarun @ Golu from his house and from that day, he has not returned. He stated that on 19.05.2005, his brother Omkar was present in his house as he had injuries on his knee. However, PW-2 Omkar Dubey stated that on 19.05.2005, he returned to his house from his office in the evening. In his cross- examination, he stated that he returned to his house on 19.05.2005 at 8.30 p.m. It shows that PW-7 Kishan Kant is deposing falsely regarding the presence of PW-2 Omkar Dubey in his house on 19.05.2005. PW-2 Omkar Dubey has not stated that he was in his house on that day as he had knee injuries.
69. According to PW-7 Kishan Kant, he accompanied his brother to the police station at the time of filing of the complaint on 19.05.2005. It is evident from the depositions of PW-2 Omkar Dubey and PW-3 Mithlesh that no complaint or PCR call was made on 19.05.2005. PW-2 Omkar Dubey or PW-3 Mithlesh has not stated that PW-2 Omkar Dubey visited the police station on 19.05.2005. In fact, no written complaint was made on 19.05.2005 or 20.05.2005. On 19.05.2005 at 7.30 p.m., PW-3 Mithlesh made a call at 100 and thereafter, DD No. 23A Ex.PW13/A was recorded and PW-13 ASI Bhim Singh with Ct. Brijbir reached the house of PW-3 Mithlesh. In fact, PW-2 Omkar Dubey did not accompany PW-13 ASI Bhim Singh to the police station on 20.05.2005.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 24 of 41
70. It cannot be believed that such important information could be withheld by PW-2 Omkar Dubey or PW-3 Mithlesh, parents of the deceased Tarun @ Golu.
71. PW-3 ASI Bhim Singh, Enquiry Officer has also not stated that PW-2 Omkar Dubey, PW-3 Mithlesh or PW-7 Kishan Kant stated that on 19.05.2005 at 4.30 p.m., the deceased Tarun @ Golu was taken by Padam @ Banti from his house. He has also not stated that PW-2 Omkar Dubey and PW-7 Kishan Kant accompanied him to the police station.
72. PW-3 Mithlesh stated that on 20.05.2005, she called at 100 and PCR/ police came to her house and made enquiry from her and thereafter, they left. She has not stated that her husband or brother-in-law Kishan Kant accompanied the police official or PCR.
73. Finally, PW-3 Mithlesh stated that the accused present in the Court did not visit her residence on 19.05.2005.
74. There is no evidence on record that the deceased Tarun @ Golu was last seen in the company of the accused Ravinder @ Raju, Karamveer and Usha.
(iii) Absconding:
75. PW-2 Omkar Dubey, PW-3 Mithlesh and PW-7 Kishan Kant did not suspect involvement of the accused persons on 19.05.2005 or 20.05.2005. DD No. 23A Ex.PW13/A does not state that PW-3 Mithlesh suspected involvement of the accused persons. PW-2 Omkar Dubey did not make any complaint against the accused persons till 10.10.2007.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 25 of 41
76. According to PW-2 Omkar Dubey, after 2-4 days, he came to know that the accused Usha, Sanjay @ Guddu and Padam @ Banti kidnapped his son. He stated that he stated this fact to the police officials and continued the visiting the police station for 2 years. He stated that he filed a petition before the Hon'ble High Court of Delhi. The petition was not produced. He admitted that he had not made any written complaint.
77. According to PW-3 Mithlesh, on 20.05.2005, she went to the house of the accused Usha to make enquiry about her son. She stated that Padam @ Banti and Guddu stated that they left her son after some time and they did not know whereabouts of her son. Thereafter, she made a call at 100. This fact is also not mentioned in the DD No. 23A Ex.PW13/A and DD No. 81 Ex.PW13/B.
78. According to PW-3 Mithlesh, in the year 2006, the accused Usha stated in a quarrel with her son that she got her one son killed and she would also get her another son killed. She stated that thereafter, her husband filed a petition before the Hon'ble High Court and the accused Usha sold her house and shifted to Rohini. This fact is also not mentioned in the complaint Ex.PW2/A. She admitted that she did not lodge any complaint with the police regarding threat extended by the accused Usha to get her another son killed.
79. The complaint was lodged on 10.10.2007. Till 10.10.2007, the accused persons were not suspected to be involved in the kidnapping of Tarun @ Golu.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 26 of 41
80. FIR No. 40/07 was recorded on 10.10.2007 at 11.35 p.m. in PS Karawal Nagar under section 363 IPC. The name of the accused persons surfaced for the first time on 10.10.2007. The accused Usha already sold her house in the year 2006. The accused Usha was arrested on 11.10.2007 at 10.20 p.m. by the police officials of the Special Staff, South- West District, Delhi. PW-9 ASI Hari Kishan, In-charge, Raiding Team, Special Staff, South- West District, Delhi stated that he made no enquiry regarding the previous tenanted accommodation of the accused persons. There was no reason for the accused persons to abscond in the absence of any suspicion regarding their involvement in the kidnapping of the deceased Tarun @ Golu. There is nothing on record that the accused persons changed their accommodation to escape their arrest. In fact, they were not suspected to be involved in the kidnapping of the deceased Tarun @ Golu till 10.10.2007.
81. The prosecution has failed to prove that the accused persons were absconding to prevent their arrest.
(iv) Discovery of the place of incident and photographs:
82. The case of the prosecution is that on 12.10.2007, the accused Ravinder @ Raju, Karamveer and Usha led them to the place of incident in the fields of Village Mandola, PS Loni, District Ghaziabad, U.P. and pointed out the place of incident vide fardnisandehi Ex.PW15/A and the photographs of the deceased Tarun @ Golu mark A to C were recovered from PS Kotwali, Loni, District Ghaziabad, U.P. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 27 of 41
83. There is evidence on record that the place from where the dead body of the deceased Tarun @ Golu was recovered by PW-10 HC Madan Singh Som, PS Loni was already in the knowledge of PW-9 ASI Hari Kishan.
84. It is also proved on record that the photographs mark A to C were already collected by PW-9 ASI Hari Kishan from PS Kotwali, District Ghaziabad, U.P.
85. PW-2 Omkar Dubey proved that police officials came to his house and his wife handed over photographs of the deceased Tarun @ Golu to them on 07.10.2007. He also proved that on 09.10.2007, police officials of Special Staff had taken him to a police station in Murad Nagar. He also proved that the photographs of the dead body of his son were shown to him by the police official of Special Staff and he identified the photographs of the dead body of his son Tarun @ Golu. He identified the said photographs as mark A to C. He proved that thereafter, he was taken to the office of DCP in Vasant Vihar where the DCP directed police officials of Special Staff to arrest the accused persons. He has not stated that the accused persons were taken to PS Kotwali on 12.10.2007. He has not stated that he was called by the police official in PS Kotwali for identification of the photographs of the dead body of his son Tarun @ Golu on 12.10.2007. He has not stated that at the time of identification of the photographs of the dead body of his Tarun @ Golu, the accused persons were present in PS Kotwali, Loni, District Ghaziabad, U.P. FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 28 of 41
86. The relevant portion of the deposition of PW-2 Omkar Dubey is as under:
"On 07.10.2007, two police officials came to my house in civil dress but at that time I was not present in the house. However, my wife was present there. Said police officials asked for the photograph of my son Tarun and my wife handed over the photograph of my son to them. When I came back to my house in the evening, my wife told me about the above said fact and thereafter I made a call on the number which was given to by my wife by those police officials and I was asked to come at 10 am in the next morning. On the next morning, I went to office of Special Staff- Dhaula Kuan. On reaching there, they asked to produce a copy of the FIR or missing report, but I could not produce the same at the missing report was not handed over to me nor any FIR was lodged in the PS Gokal Puri. Then, I also told that a case has been filed by me in the High Court, then the police officials of Special Staff asked the name of my counsel and I told the name of my counsel to them. On that whole night, I remained in the Special Staff Office. Thereafter, in the morning, I was taken to Sahibabad and Ghaziabad but no clue could be gathered from there and I was taken to Muradnagar. In the PS Muradnagar, the photographs of dead body of my son were shown to me by the police official of Special Staff who took me there and I identified the photographs of the dead body being that of my son Tarun. The photographs of my son on record are mark A to C. Thereafter, I was taken to Vasant Vihar in the office of DCP. The photographs were shown to me in the police station which is situated on the road which leads to Shamli from Ghaziabad. The photographs which are already mark A to mark C, were identified by me in the said police station being that of the dead body of my son. Thereafter, the said photographs were handed over to ASI Hari Kishan- Special Staff and same were taken into possession vide seizure memo Ex.PW2/A which bears my signatures at point A. From the said police station, I was brought to the office of Special Staff at Vasant Vihar, where I met DCP. Thereafter, DCP Special Staff directed the police officials of Special Staff to arrest the accused persons.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 29 of 41 On 11.10.2007, accused persons were arrested as I had seen them in the office of Special Staff Dhaula Kuan. No proceeding was conducted in the office of the Special Staff at Dhaula Kuan, in my presence. Thereafter, I came back to my house. From Dhaula Kuan I was brought to the police station Gokalpuri and in the police station my statement my statement was recorded on my dictation by the SHO and I signed the said statement and on the said statement, the FIR was registered....."
In his cross- examination by the defence, he stated as under:
"I met the officials of the Special Staff for the first time on 07.10.2007. On the next day, I went to the office of the Special Staff at about 10- 11.00 a.m....."
87. PW-3 Mithlesh went to the extent of stating that the police officials reached her house with the photographs of her son and asked them to identify the photographs. She stated that her husband identified the photographs as the photographs of dead body of his son and thereafter, he alongwith police officials left PS Loni, Ghaziabad, U.P. In her cross- examination by the defence, she could not state the date of visit of police officials with the photographs of the dead body of her deceased son. The relevant portion of the examination-in-chief of PW-3 Mithlesh is as under:
"After about 2-2 ½ years incidents the police officials and officials of CBI came to our residence along the photographs of my son and asked us to identify the photographs. My husband identify the photographs as the photographs of dead body of my son and thereafter, he alongwith the police officials left PS Loni."
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 30 of 41
88. Further, PW-9 ASI Hari Kishan, In-charge, Special Staff, South-West District, Delhi stated that all the accused persons were taken to PS Kotwali, Loni, Ghaziabad, U.P. and he collected three photographs mark A to C from PS Kotwali. He stated that the complainant Omkar Dubey was also present and he identified the photographs as that of his deceased son Tarun @ Golu. He stated that he seized the photographs vide seizure memo ExPW2/A. However, he has not stated as to how he came to know about the name and address of the complainant Omkar Dubey. He has also not stated that how he called the complainant Omkar Dubey. It would be relevant to note that FIR No. 40/07 under section 363 IPC was registered in PS Karawal Nagar on 10.10.2007 at 11.35 p.m. PW-1 ASI Darshan Singh, Duty Officer, PS Karawal Nagar has not stated that he has not provided the particulars of the complainant Omkar Dubey to PW-9 ASI Hari Kishan on 12.10.2007 at 10.30 a.m. PW-11 SI Rajesh Dogra, Investigating Officer has not stated that he provided the particulars of the complainant Omkar Dubey to PW-9 ASI Hari Kishan.
89. According to PW-9 ASI Hari Kishan, he alongwith the accused persons and the complainant reached at PS Kotwali, Loni, District Ghaziabad, U.P. on 12.10.2007. Seizure memo Ex.PW1/A has interpolation on the date. However, he stated, in his cross- examination that he reached at PS Kotwali, Loni, District Ghaziabad, U.P. before noon on 12.10.2007. He stated that he cannot state the exact time.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 31 of 41
90. It is further seen from the deposition of PW-15 HC Subhash Chand that PW-9 ASI Hari Kishan alongwith the accused persons left his office on 12.10.2007. The relevant portion of his cross- examination is as under:
".....We left our office at about 8.45 p.m. Sh. Omkar was called at Loni Police Station, U.P. on 12.10.2007, I do not recollect the exact time. I do not know as to in what manner Sh. Omkar was informed to come to PS- Loni....."
91. It is therefore, evident that there are material contradictions regarding the time at which PW-9 ASI Hari Kishan with the accused persons reached at PS Kotwali, Loni, District Ghaziabad, U.P. According to PW-9 ASI Hari Kishan, it was before noon on 12.10.2007. According to PW-15 HC Subhash Chand, they reached PS Loni on 12.10.2007 at 8.45 p.m.
92. This Court is further fortified in its opinion by the fact that DD No. 45A Ex.PW9/M recorded at 11.45 p.m. on 11.10.2007 mention FIR No. 40/07 dated 10.10.2007 under section 363 IPC PS Karawal Nagar, Delhi. It is stated therein that PW-9 ASI Hari Kishan made enquiry and came to know about the registration of the said kidnapping case in respect of Tarun @ Golu on the complaint of Omkar. He has not stated as to from whom he made the said enquiry. He informed the local police station on 12.10.2007 at 10.30 a.m. There is no evidence on record that any officer from PS Karawal Nagar informed him about the registration of the said FIR against the accused persons on the complaint of Omkar Dubey.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 32 of 41
93. To dispel any doubt on this aspect, it would be appropriate to refer the cross- examination of PW-9 ASI Hari Kishan, as under:
"The secret informer had not told me the particulars of the case FIR registered against the accused persons and also the police station, where the case was registered. It is correct that I have mentioned in my kalandara that a case has been registered against the accused persons at PS Karawal Nagar. I had not collected any information from any Police Station regarding the registration of any FIR against the accused......"
94. Surprisingly, DD No. 12 Ex.PW9/A mention PS Karawal Nagar. It also mention minute details of the case that a boy named Golu was kidnapped and murdered in the field of Village Mandola before 2 ½ years. He could not be identified. Proceedings under section 174 Cr.P.C. were conducted. He was cremated for want of identification. The accused Ravinder @ Raju, a resident of Palwal and Karamveer, resident of Buland Shahar were wanted in the kidnapping and murder of Golu.
95. It further clarifies that PW-9 ASI Hari Kishan had the knowledge of the place of incident in Village Mandola, District Ghaziabad on 11.10.2007 at 8.45 p.m.
96. This Court is of the considered opinion that PW-9 ASI Hari Kishan had the knowledge of the place of recovery of the dead body in Village Mandola before 12.10.2007. He had already collected the photographs of the dead body of the deceased mark A to C from PS Kotwali, Loni, District Ghaziabad, U.P. and shown to PW-2 Omkar Dubey.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 33 of 41
97. This Court is further fortified in its opinion as PW-9 ASI Hari Kishan did not make any departure entry while leaving for PS Kotwali, Loni, District Ghaziabad, U.P. He did not make any arrival entry in PS Kotwali, Loni, District Ghaziabad, U.P. He did not record statement of Ct. Rajnish. He did not join any police official from PS Kotwali, Loni, District Ghaziabad, U.P. in the investigation. Relevant portion of his cross- examination is as under:
".....I do not remember the time when we reached at PS Kotwali, Loni but it was before noon on 12.10.2007. I had not recorded statement of any police official there. Ct. Rajnish of PS Kotwali, Loni had handed over me the photographs. I had not recorded his statement. No police officials from PS Kotwali, Loni had joined us in the investigation. I had not recorded the statement of the complainant....."
98. This Court is of the considered opinion that no fact was discovered pursuant to the disclosure statements of the accused Ravinder @ Raju, Karamveer and Usha. Shoddy investigation and planted case:
99. PS Gokalpuri did not register FIR regarding kidnapping of the deceased Tarun @ Golu on 20.05.2005.
100. PW-13 ASI Bhim Singh did not make any enquiry regarding the missing/ kidnapping of the deceased Tarun @ Golu. He did not record statements of PW-2 Omkar Dubey, PW-3 Mithlesh and PW-7 Kishan Kant.
101. Besides stating that he sent wireless message across the country and filled missing form, he did not make any effort to search the deceased Tarun @ Golu.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 34 of 41
102. DD No. 81B Ex.PW13/B mention that PW-13 ASI Bhim Singh asked PW-3 Mithlesh to provide photographs of her son Tarun @ Golu for publication. However, there is nothing on record that he collected the photographs or made any publication regarding missing of the deceased Tarun @ Golu.
103. The failure of the police is evident from the fact that the dead body of the deceased Tarun @ Golu was found in the field of Village Mandola, PS Loni, District Ghaziabad, U.P. on 20.05.2005 i.e. the day on which PCR call was made but the fact of death of the deceased Tarun @ Golu came to the knowledge of the police after 2 ½ years on 12.10.2007.
104. It further shows that in fact, no enquiry or proceedings was undertaken for search of the deceased Tarun @ Golu. It cannot be believed that PS Kotwali, Loni, District Ghaziabad, U.P. located within the radius of 10 meter from PS Gokalpuri would not have been aware of the missing of the deceased Tarun @ Golu.
105. It has already been discussed earlier that the factum of the murder of the deceased Tarun @ Golu and recovery of his body from the field of Village Mandola by PS Kotwali on 20.05.2005 was already in the knowledge of PW-9 ASI Hari Kishan and the photographs of the dead body of the deceased Tarun @ Golu was already shown to PW-2 Omkar Dubey and PW-3 Mithlesh on 07.10.2007 i.e 3 days before the date of registration of FIR on 10.10.2007. It shows that the FIR was manipulated by PS Gokalpuri and PS Karawal Nagar.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 35 of 41
106. PS Gokalpuri did not register FIR on 20.05.2005. It swung into action on 10.10.2007 at 11.20 p.m. on the complaint of PW-2 Omkar Dubey. There is no explanation as to why the complainant Omkar Dubey did not suspect involvement of the accused persons in the kidnapping of his son Tarun @ Golu since 20.05.2005. This Court is of the opinion that the complaint Ex.PW2/B was made by the complainant at the instance of PS Gokalpuri.
107. PW-2 Omkar Dubey in his complaint dated 10.10.2007 Ex.PW2/B suspected involvement of accused Usha and her family members and her relatives in the kidnapping of his son Tarun @ Golu on the basis of their actions (harkaton). The accused Usha sold her house in the year 2006 and shifted from Gali No. 3, Shiv Vihar, Delhi. The Court is not able to understand as to what prompted PW-2 Omkar Dubey to lodge complaint with the PS Gokalpuri on 10.10.2007 on the basis of actions (harkaton) of the accused Usha who had already shifted from his neighbourhood in the year 2006. He has not even spelled the said actions (harkate) in his complaint. It shows that the complaint Ex.PW2/B was a procured complaint.
108. The swift action taken by PS Gokalpuri is also fortifying the opinion of this Court that FIR No. 40/07 was registered U/s 363 IPC on 10.10.2007 is a fabricated document. The complaint was lodged on 10.10.2007 at 11.20 p.m. in PS Gokalpuri. PW-5 HC Subhash Chand immediately prepared tehrir. At 11.35 p.m., FIR registered at PS Karawal Nagar.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 36 of 41
109. PW-9 ASI Hari Kishan had received such specific information from a secret informer. Secret informer not only merely communicated him the fact that the accused persons kidnapped and murdered the deceased Tarun @ Golu on 20.05.2005 and left his body in the field of Village Mandola, he also communicated that the dead body was cremated for want of identification after conducting inquest proceedings under section 174 Cr.P.C. He also communicated him the PS where the FIR was registered on 10.10.2007 at 11.35 p.m. PW-9 ASI Hari Kishan had the knowledge of the particulars of FIR No. 40/07 under section 363 IPC PS Karawal Nagar at 11.55 p.m. on 11.10.2007. This fact is also mentioned in DD No. 6A dated 12.10.2007 PS Karawal Nagar Ex.PW1/A. He has admitted that he did not ask the concerned PS to provide the particulars of the said FIR.
110. PW-11 SI Rajesh Dogra was not associated during the investigation in PS Kotwali, Loni, District Ghaziabad, U.P. on 12.10.2007.
111. This Court is of the considered opinion that the FIR No. 40/07 U/s. 363 IPC was registered on 10.10.2007 at 11.35 p.m. at PS Karawal Nagar as the fact of murder and recovery of the dead body of the deceased Tarun @ Golu was in the knowledge of the police officials of PS Gokalpuri, PS Karawal Nagar and PW-9 ASI Hari Kishan, Special Staff, South-West District, Delhi. It is relevant to note that PW-11 SI Rajesh Dogra stated that on 11.10.2007, the deceased was already identified.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 37 of 41
112. The FIR No. 40/07 under section 363 IPC was registered on 10.10.2007 at 11.35 p.m. by PS Karawal Nagar on the basis of rukka sent by PW-5 ASI Subhash Chand, PS Gokalpuri in collusion with PW-9 ASI Hari Kishan and PW-2 Omkar Dubey just to save themselves from appropriate action for their failure to register FIR under relevant section on 20.05.2005 and not conducting any enquiry regarding the cause of missing and to search the missing deceased Tarun @ Golu. Conclusion:
113. The prosecution has failed to prove the charges in question. Accordingly, the accused Ravinder @ Raju, Karamveer and Usha are acquitted from offences under section 302/120-B IPC.
Administrative action against the police officials for inaction and fabrication:
114. PS Gokalpuri did not register FIR on 20.05.2005. PS Gokalpuri did not make any enquiry for ascertaining the cause of missing or whereabouts of the deceased Tarun @ Golu pursuant to DD No. 23A Ex.PW13/A. The dead body remained with PS Kotwali, Loni, District Ghaziabad, U.P. for 10 days since 20.05.2005 and thereafter, it was cremated for want of identification.
115. PW-9 ASI Hari Kishan in collusion with PS Gokalpuri and PS Karawal Nagar fabricated the case in order to save them from possible administrative action for their failure to register FIR and make search of the deceased Tarun @ Golu.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 38 of 41
116. In 'State of Gujarat v Kishan Bhai etc.', Crl. A. No. 1485 of 2008 decided on 07.01.2014, Hon'ble Supreme Court held as under:
"On the culmination of a criminal case in acquittal, the concerned investigating/ prosecuting official (s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability....."
117. In 'Dayal Singh & Ors. v State of Uttaranchal', Crl. A. No. 529 of 2010 decided on 03.08.2012, the trial Court directed Director General, Medical Health, Uttar Pradesh and Director General of Police, U.P./ Uttaranchal to take administrative action against the doctor who conducted post- mortem and the investigating officer. However, Director General Medical Health, Uttar Pradesh and Director General of Police, U.P./ Uttaranchal had not taken any action. Hon'ble Supreme Court issued notice to show cause why action in accordance with the provision of Contempt of Courts Act, 1971 be not initiated against Director General, Medical Health, Uttar Pradesh and Director General of Police, U.P./ Uttaranchal. Hon'ble Supreme Court held that if the concerned officer is retired, then the authorities should take action for withdrawal or partial deduction in the pension.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 39 of 41 Hon'ble Supreme Court of India held as under:
"39. Having analyzed and discussed in some elaboration various aspects of this case, we pass the following orders:
.....
E) We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, international acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the Courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired."
118. This Court hereby directs the Commissioner of Police, Delhi to take stern administrative action against the then SHO, PS Gokalpuri and ASI Bhim Singh for their failure to register FIR on 20.05.2005 and for not conducting investigation/ enquiry to search whereabouts of the deceased Tarun @ Golu.
119. This Court further directs the Commissioner of Police, Delhi to take stern action against ASI Hari Kishan, Special Staff, South-West District, Delhi, Ct. Subhash Chand, Special Staff, South-West District, Delhi, ASI Subhash, PS Gokalpuri, SI Rajesh Dogra, PS Karawal Nagar, Insp. Sukhbir Singh, SHO, PS Karawal Nagar for fabricating the present case after discovery of the murder of Tarun @ Golu and presenting false evidence before the Court.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 40 of 41
120. A copy of the judgment be sent to the Commissioner of Police, Delhi to take action within three months from today and report the matter to this Court.
Announced in the open court SANJAY SHARMA on this 26th day of September, 2015.Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 40/07 State Vs. Ravinder @ Raju & Ors. Page No. 41 of 41