Delhi District Court
State vs . (1) Rajesh @ Putiya on 29 March, 2022
FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 IN THE COURT OF SHRI VISHAL GOGNE: ADDL. SESSIONS JUDGE04 : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Registration No. SC/441010/2016 CNR No. DLSW010004442013 State Vs. (1) Rajesh @ Putiya S/o Sh. Dhariya R/o Bhartari Dhani, Village Kishori, Distt. Alwar, Rajasthan FIR No. : 109/08 Police Station : Kapashera Under Sections : 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act Date of committal to Sessions Court : 03.07.2013 Date on which judgment was reserved: 24.03.2022 Date on which Judgment pronounced : 29.03.2022 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The FIR (Ex. PW1/A) forming the basis of the present chargesheet was registered on the statement given by ASI Jagpal Singh (PW5) dated 15.05.2008. The said police official recounted the chain of events leading up to the incident in State V/s Rajesh @ Putiya Page 1 of 1 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 question as follows.
2. ASI Jagpal stated that as he was present along with HC Naresh Kumar on PCR Van duty at Bajghera picket on the intervening night of 14.05.2008 and 15.05.2008 at about 3:45 AM, they received a wireless message to the effect that a tempo bearing no. UP 14X 9976 was being chased by a police team as it was containing slaughtered cows. The information was to the effect that the tempo was approaching the Bajghera Picket on the Nala Road from the direction of Dhulsiras. ASI Jagpal Singh parked his vehicle on the T point of Najafgarh Road in a manner that would cause approaching vehicles to slow down but still leaving just about enough space for any vehicle to pass through.
The complainant asserted that since gangs dealing with slaughter of cows were perceived to usually hit the police barricades rather than stopping, he and HC Naresh Kumar came out of their police vehicles and stood on the side of the same for stopping the suspected tempo.
3. They both suddenly noticed a tempo coming at high speed from the direction of Dhulsiras and beckoned for it to stop. However, the tempo driver, instead of stopping, smashed his vehicle into the vehicle of the police party. The complainant was flung away due to the collision whereas HC Naresh Kumar got dragged with the offending tempo for a long distance. The police State V/s Rajesh @ Putiya Page 2 of 2 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 vehicle became entangled with the tempo and was pushed away. The tempo i.e. Tata 407 got stuck in a heap of garbage. The complainant provided the registration number of the tempo as Tata 407 UP 14X 9976 and alleged that the same was containing several slaughtered cows. He further stated that the driver of the vehicle escaped along with his accomplishes. The complainant specified in the FIR that while the PCR van took him and HC Naresh Kumar to the Safdarjang Hospital, the later had subsequently expired due to the injuries caused upon his person.
4. ASI Jagpal had been posted as a driver in the PCR van (bearing registration no. DL1CJ0484) by the description Zebra 85 while HC Naresh was the Incharge of the van. The information regarding the Tata 407 driven by the accused persons had been given to Zebra 85 by HC Bal Kishan (PW4) and Const. Vijay Kumar (PW11) who were doing patrol duty in another PCR van of the description Zebra90.
5. Investigation revealed that the Tata407 bearing No. UP 14X9976 was registered with transport authority, Ghaziabad, U.P., in the name of Sh. Mahesh Chand Gupta. On inquiry, Mahesh Chand Gupta revealed that he had entered into a transaction with one Mohd. Iqbal (the previous owner of the Tata407 vehicle) for its purchase but later on he cancelled the transaction as he found that the chassis of the vehicle had been State V/s Rajesh @ Putiya Page 3 of 3 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 turned into a milk container which was of no use to him. Thus, he did not take the delivery of the vehicle from Mohd. Iqbal. Inquiries were, thereafter, made from Mohd. Iqbal, who revealed that he had sold the vehicle in the name of one Mohd. Nafis Khan and on his behalf the delivery of the vehicle was given to his nephew i.e. Ass Mohd. The police contacted Ass Mohd and recorded his statement wherein he admitted that he had purchased aforesaid Tata407 vehicle in presence of his uncle Mohd. Nafis Khan. He further revealed that he is working as a mechanic and accused Saleem and Azim used to come to his shop for repair of their vehicle, whereby the friendship grew between them. At the request of accused Saleem and Azim, he handed over the aforesaid vehicle to them on 14.05.2008 in presence of accused Potia and one Baba Kasai.
6. It also come to be known that accused Saleem and Azim were real brothers and that they were working for accused Naushad and one Rizwan.
7. Upon investigation, the chargesheet was originally filed against four accused persons namely Mohd. Saleem, Mohd. Azim, Ass Mohd. and Mohd. Naushad. A fifth accused namely Potia was reflected as a proclaimed offender. The present accused who is the subject of this judgment namely Rajesh @ Putiya is represented to be the said Potia and his role had State V/s Rajesh @ Putiya Page 4 of 4 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 purportedly been disclosed to the original IO i.e. Inspector Jagdish Kumar (PW24) by the other accused persons.
8. Accused Rajesh @ Putiya was arrested on 22.04.2013 by the Special Staff of the Delhi Police and upon information being given to the Kapashera police station, he was formally arrested by SI Lala Ram (PW23) on 23.04.2013. He refused to participate in the TIP proceedings.
9. Vide judgment dated 21.03.2011, the ld. Predecessor of this court convicted accused Mohd. Saleem and Mohd. Azim under section 302 IPC for causing the death of HC Naresh; under section 307 IPC for attempt to cause the death of ASI Jagpal; under section 427 for causing damage to PCR No. DL 1CJ 0484; under section 427 IPC for killing cows and under section 4/5 (1)/12 of the Delhi Agricultural Cattle Preservation Act 1994 (DACP Act) for transporting and selling cow meat.
10. Accused Ass Mohd. and Mohd. Naushad were acquitted through the same judgment.
11. Upon an appeal being preferred by convict Mohd. Saleem against the judgment dated 21.03.2011, the Hon'ble High Court of Delhi, vide judgment dated 31.05.2013, partly allowed the appeal and set aside his conviction under section 302 as well as section 307 read with section 34 IPC. Appellant Mohd. Saleem was rather convicted under section 304 A IPC read with section State V/s Rajesh @ Putiya Page 5 of 5 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 34 IPC and sentenced to rigorous imprisonment for a period of two years alongwith fine of Rs. 25,000/. His conviction under section 12 of DACP Act and section 427 IPC was maintained by the Hon'ble High Court. The Hon'ble High Court further noted that coconvict Mohd. Azim had subsequently been declared a juvenile and the appellate proceedings against him stood closed.
12. The following articles of charge came to be framed against accused Rajesh @ Putia.
"That on 15.05.2008 at about 4:00 am at near picket Bajghera T point Dhulsiar, Najafgarh Road Nalewala T point within the jurisdiction of police station Kapashera in furtherance of your common intention you accused alongwith coaccused persons Mohd Saleem and Mohd Azim (convicted vide judgment dated 21.03.2011), accused Mohd Naushad and accused Ass Mohd (acquitted vide judgment dated 21.03.2011) accused Baba Qazim (not traceable) you committed mischief by killing poisoning maiming or rendering useless and cows valued above Rs. 50/ and you thereby committed an offence punishable U/s 429 IPC read with Section 34 IPC and within the cognizance of this court.
Secondly on the above said date, time and place you accused had slaughtered cows and were carrying, transferring them for the purpose of selling the meat of slaughtered cows and State V/s Rajesh @ Putiya Page 6 of 6 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 you thereby committed an offence punishable U/s 45(1) of DACP Act read with section 34 IPC and within the cognizance of this court.
And I hereby direct that you be tried by this court for the aforesaid charge.
(Vikas Dhull) ASJ01/Dwarka Courts New Delhi"
"That on 15.05.2008 at about 4:00 am at near picket Bajghera T Point Dhulsiar, Najafgarh Road Nalewala T point within the jurisdiction of police station Kapashera in furtherance of your common intention you accused alongwith coaccused persons Mohd. Saleem and Mohd. Azim (convicted vide judgment dated 21.03.2011) and accused Baba Qazim (not traceable) committed murder causing the death of HC Naresh Kumar and thereby you committed an offence punishable U/s 302 R/w Section 34 IPC within the cognizance of this court.
Secondly on the aforementioned, date, time and place within the jurisdiction of P.S Kapashera, you accused alongwith coaccused persons Mohd Saleem and Mohd. Azim (convicted vide judgment dated 21.03.2011) and accused Baba Qazim (not traceable) in furtherance of your common intention, caused inquiries by strucking Tata 407 against the PCR Van, to ASI Jagpal singh with such intention or knowledge and under such State V/s Rajesh @ Putiya Page 7 of 7 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 circumstances that if by that act you had caused the death of ASI Jagpal Singh, you would have been guilty of murder and thereby committed an offence punishable U/s 307 IPC R/w Section 34 IPC within the cognizance of this court.
Thirdly on the aforementioned, date, time and place within the jurisdiction of P.S Kapashera, you accused alongwith co accused persons Mohd Saleem and Mohd Azim (convicted vide judgment dated 21.03.2011) and accused Baba Qazim (not traceable) in furtherance of you common intention of you all committed mischief by causing loss or damage to the PCR Van bearing no.DL1CJ0484 belonging to police amounting to more than Rs.50/ and that you all thereby committed an offence punishable U/s 427 read with section 34 IPC within the cognizance of this court.
And I hereby direct that you be tried by this court for the aforesaid charge.
(Vikas Dhull) ASJ01/Dwarka Courts New Delhi"
Additional Charge "That on 01.09.2008 you failed to appear before the court of Sh. Gautam Manan, Ld. MM, Patiala House Courts New Delhi as per date and time mentioned in the proclamation U/s 82 State V/s Rajesh @ Putiya Page 8 of 8 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 Cr.PC and you were declared proclaimed offender by the said court on 01.09.2008 and thereby committed an offence punishable U/s 174A IPC within the cognizance of this court.
And I hereby direct that you be tried by this court for the aforesaid charge.
(Vikas Dhull) ASJ01/Dwarka Courts New Delhi"
13. The prosecution examined 25 witnesses in support of the articles of charge.
14. The witnesses for purpose of identification of the accused as one of the alleged occupants of the Tata 407 tempo were PW 4, PW5 and PW11.
15. PW4 and PW11 were the police officials who chased the Tata 407 vehicle whereas PW5 (ASI Jagpal) was the police official who got injured upon the collision between two vehicles.
16. The deposition of these witnesses shall be discussed in greater detail when the findings are rendered by this court on the material facts in issue.
17. The deposition of other witnesses related to the investigation may first be noted.
18. PW1 was the Duty Officer who recorded the FIR (Ex. PW1/A) whereas PW2 was the official from the RTO office, Ghaziabad, UP who tendered the attested copy of the ownership State V/s Rajesh @ Putiya Page 9 of 9 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 record of the Tata 407 tempo bearing No. UP14X9976 as Ex.PW2/A. The owner, reflected as Mahesh Chand Gupta was himself was examined as PW3.
19. PW7 was also a witness to the purchase of the Tata 407 by PW3. He further deposed that one Ass Mohd. (coaccused who was acquitted vide judgment dated 25.03.2011) had purchased the Tata 407 from PW3 and taken possession of the same. This witness was also not cross examined. Similarly, PW 8 (Mohd. Suleman) deposed that Ass Mohd had brought the Tata 407 to extend the height of its cargo area and that PW8 charged Rs. 2,000/ for doing so.
20. PW6 was the owner of a mobile shop cited to prove that the accused had been brought by the police officials for activation of SIM bearing No.92107743453 purportedly sold to the accused by PW6 without proof of identity being taken. During his examination in chief, however, PW6 failed to identify the accused as the said person who had purportedly been visiting his shop for making STD calls and had purchased a SIM card of Tata CDMA without identity proof. The admission of the suggestion regarding the identity of the accused is therefore of no consequence. PW6 was infact a redundant witness and not cross examined by the accused either.
21. PW9 Inspector Deepak Sharma proved a CD containing State V/s Rajesh @ Putiya Page 10 of 10 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 the simulation report of the collision between the Tata 407 tempo and the police vehicle as Ex. PW9/P1.
22. PW10 (HC Manoj) and PW25 (IO/Inspector Vijay Pal) were the police officials who recorded the disclosure statement (Ex.PW10/A) from the accused and also prepared the pointing out memo (Ex. PW10/B) qua the place of incident.
23. Two officials from the crime team which reached the place of incident on 15.05.2008 viz Inspector Harinder Singh and Constable Praveen Kumar (photographer) were examined as PW 12 and PW13 respectively. They proved the inspection report (Ex. PW12/1), photographs (Ex. PW12/2) and the negatives (Ex. PW13/1) between them.
24. ASI Raj Kumar, who arrested accused Rajesh @ Putiya on 22.04.2013 (him being a proclaimed offender till then), was examined as PW14. This witness proved the disclosure statement, arrest memo, personal search memo, kalandara of arrest, arrival and departure entries as Ex. PW14/1 to Ex. PW14/6 respectively.
25. Two other police officials who had purportedly reached the place of incident immediately after the collision namely HC Dharmender and ASI Balbir Singh were examined as PW15 and PW16 respectively. Both these witnesses similarly deposed that they had found the Tata 407 and PCR Van Zebra 85 in accidental State V/s Rajesh @ Putiya Page 11 of 11 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 condition at Bajghera Mod after they reached the spot on receiving DD entry No.5A dated 15.05.2008. They also deposed regarding the presence of the meat of dead cows in the Tata 407 tempo. These witnesses proved the seizure memos of the two accidental vehicles as Ex. PW15/1 and Ex. PW15/2 as well as the seizure memo of certain documents found in the Tata 407 tempo as Ex. PW16/1. They both specified that there was blood on the road and the Tata 407 was found in a garbage heap. Further, that the PCR van has taken the injured to the hospital by the time they reached.
26. PW17 had carried the request letter Ex. PW17/A to the Ghaziabad Transport Authority regarding the ownership of the Tata 407 bearing No. UP14X 9976 whereas PW18 was the constable/Chitha Munshi who proved the relevant entries from the Duty Register for PCR vans Zebra 85 and 90 on 14.05.2008 as Ex. PW18/1. The entries reflected that HC Naresh Kumar (deceased) and ASI driver Jagpal Singh were assigned duties on PCR Zebra 85 from 8:00 pm to 8:00 am on 14.05.2008 while HC Bal Kishan was the incharge of PCR Van Zebra 90 from 8:00 pm to 8:00 am on 14.05.2008.
27. PW19 (ASI Sanjeev Kumar) deposed that he had gone with IO SI Lala Ram (PW23) for the formal arrest of accused Rajesh @ Putiya at Rohini Court on 23.04.2013. He proved the State V/s Rajesh @ Putiya Page 12 of 12 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 arrest memo and disclosure statement of the accused as Ex. PW19/1 and Ex. PW19/2.
28. PW23 corroborated the account given by PW19.
29. PW24 was the IO of the original chargesheet against the coaccused persons qua whom judgment was rendered on 25.03.2011.
30. He submitted that he had come to know about the role of accused Rajesh @ Putiya from the disclosure statement made by the other coaccused persons.
31. He further deposed that his application for getting accused Rajesh @ Putiya declared a proclaimed offender was Ex. PW24/A.
32. The last witness for the prosecution was the IO (Inspector Vijay Pal) who filed the present supplementary chargesheet against accused Rajesh @ Putiya. He deposed as PW25 to state that he had obtained police custody of the accused for one day and recorded his disclosure statement. Further, that the accused had been identified by the eye witnesses i.e. ASI Jagpal, HC Bal Kishan and constable Vijay Kumar before him. Also, that he had recorded their statements under section 161 Cr. PC.
33. The accused denied all evidence led against him during his statement under section 313 Cr. PC. He did not lead any evidence in defence.
State V/s Rajesh @ Putiya Page 13 of 13FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022
34. During the course of final arguments, Mr. Yogendra Adari, the Ld. Additional Public Prosecutor submitted that the presence of the accused in the offending tempo had been proved beyond doubt through the deposition of three eye witnesses i.e. PW4, PW5 and PW11. Relying on the judgment of the Hon'ble High Court dated 31.05.2013 in appeal filed by convict Mohd. Saleem, the Ld. Prosecutor fairly submitted that the charge under section 302 IPC framed against the present accused may also be seen in the light of section 304 A IPC. It was agitated that being a co occupant of the tempo, the accused was deemed to possess the same intent and level of criminal negligence as convict Mohd. Saleem. The prosecutor argued that each occupant of the tempo was guilty of the rash and negligent act of hitting the police vehicle in as much as their goal was to avoid apprehension by the police officials. The State therefore argued for a finding of guilty against the accused under sections 304A, 307 and 429 IPC.
35. Citing the deposition of PW15, PW16 and PW24 regarding the presence of slaughtered cows in the Tata 407 tempo, the prosecutor also prayed for conviction of the accused under section 429 IPC as well as section 4/5(1)/12 of the Delhi Cattle Preservation Act.
36. In defence, the counsel for the accused agitated that PW5 State V/s Rajesh @ Putiya Page 14 of 14 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 (ASI Jagpal), who was one of the injured persons in the incident, had infact failed to identify the accused as having been present in the tempo. It was further submitted that PW4 and PW11 had admitted to being at a great distance from the offending tempo. It was thus argued by the defence counsel that these police officials would have caught only a fleeting glance of the occupants of the tempo so as to rule out any confident identification of the features of the said occupants. The counsel also pointed to the cross examination of PW4 who admitted that it was raining and stormy on the night of the incident. This admission was relied upon to canvas that the police officials had little prospect of noticing the physical features of any of the purported occupants of the Tata 407.
37. Before discussing the question of culpability of the accused, it may be observed in light of the decision of the Hon'ble High Court vide judgment dated 31.05.2013 in the appeal filed by Mohd. Saleem against the judgment dated 21.03.2011 that the reference to section 302 IPC is to be read in light of the findings of the Hon'ble High Court qua section 304 A IPC.
38. In the determination of the court, the following facts in issue required proof from the prosecution in order to justify a finding of guilty against the accused under the various articles of State V/s Rajesh @ Putiya Page 15 of 15 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 charge: relating to sections 302 (304A)/307/427 IPC and section 429 read with section 34 IPC section alongwith section 4/5(1)/12 of the DCP Act read with section 34 IPC.
(i) The factum of an intentional/rash and negligent collision between the Tata 407 and Zebra 85 PCR Van.
(ii) The presence of dead/slaughtered cows/cow meat inside the Tata 407.
(iii) Identification of the present accused Rajesh @ Putiya as one of the occupants of the Tata 407 at the time of incident.
Factum of collision.
39. The collision between the Tata 407 and the PCR Van Zebra 87 has been very well documented in the deposition of the witnesses. The two police officials who first chased the Tata 407 from Pochanpur in PCR Zebra 90 i.e. HC Bal Krishan and HC Vijay Kumar deposed as PW4 and PW11. The surviving victim from the collision i.e. SI Jagpal deposed as PW5.
40. PW4 adopted his examination dated 17.08.2009 which he had rendered during the trial of Mohd. Saleem and others. PW4 had stated on 17.08.2009 that at about 3:30 am, a tempo had been seen from the direction of Dhoolsiras towards the temple at village Pochanpur. Further, that at the said time, he was on duty in the PCR van Zebra 90 with Constable Vijay Kumar. He saw State V/s Rajesh @ Putiya Page 16 of 16 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 three or four persons sitting on the front side of the tempo while one person was standing on the back of the tempo. The tempo accelerated its speed on seeing the police vehicle. PW4 provided the number of the Tata 407 as UP 14X 9976 and further stated that a message was now sent to Zebra 85 which had a picket at village Kheda. When PW4 reached the bridge over the Chhawla drain, he noticed that personnel from Zebra 85 had stopped traffic on both sides of the said bridge. As PW4 and Constable Vijay Kumar reached the Najafgarh T point near Bajghera toll tax, they saw one ASI lying on one side of the road whereas HC Naresh Kumar was lying on the other. The Zebra 85 vehicle was found entangled in bushes and the tempo was seen entangled in a heap of waste material.
41. Similarly, PW11 HC Vijay Kumar reiterated in substantial measure the deposition of PW4 and the same is thus not being reproduced here.
42. The injured survivor i.e. ASI Jagpal (PW5) too adopted his previous deposition in chief dated 19.08.2010. The said deposition was regarding a message from PCR van Zebra 90 at about 3:45 am on 15.05.2008 in relation to tempo No. UP 14X 9976 approaching from Dhoolsiras to Bajghera, T Point and carrying slaughtered cows.
43. PW5 next stated that HC Naresh Kumar got the PCR State V/s Rajesh @ Putiya Page 17 of 17 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 Zebra 85 parked facing towards Najafgarh Road while leaving enough space for a vehicle to pass at slow speed. He deposed that after about 45 minutes from 3:45 am, a tempo was seen coming towards the Bajghera picket from the side of Dhoolsiras and at a very fast speed. This vehicle intentionally struck the PCR van instead of making its way from the side of the PCR van. He also deposed that he alongwith HC Naresh had got down from the PCR van and were standing on the side of it. Though they signaled for the tempo to stop, it still struck the PCR van. HC Naresh was dragged by the tempo and the PCR van got damaged. He deposed that while HC Naresh fell on a heap of garbage, he himself was lifted in the air on account of the impact of the tempo with the PCR van and thrown some distance. The tempo got struck in the trees ahead of the heap of garbage. He specified that the accident was such as could have lead to their death.
44. The combined effect of the deposition of PW4, PW11 and PW5 is that the information regarding the tempo being given by the Zebra 90 to Zebra 85, the registration number of the tempo as well as the collision of the tempo with the PCR van 85 stands established beyond any doubt. Even if the witnesses from the chasing vehicle i.e. PW4 and PW11 did not witness the collision itself, their reaching the place of incident immediately State V/s Rajesh @ Putiya Page 18 of 18 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 after the same and finding the two vehicles in accidental condition are commensurate with the statement of PW5 who was the official deputed to PCR Zebra 85.
45. The collision between the Tata 407 and the PCR Zebra 85 stands established.
46. As to the question of the nature of the offence, this court accepts with deference and as a binding order, the reasoning of the Hon'ble High Court vide its judgment dated 31.05.2013 regarding the incident being akin to rash and negligent driving punishable under section 304 A IPC and not murder punishable under section 302 IPC.
47. This finding, however, is not sufficient for a conviction without the identification of the accused which shall be taken up in the discussion to follow in the later part of this judgment.
Presence of cow meat in the Tata 407
48. It is highlighted here that the Hon'ble High Court vide judgment dated 31.05.2013, while sustaining the judgment dated 21.03.2011 in the trial related to other coaccused namely Mohd. Saleem and others observed that :
26. The last question relates to whether offence under Sections 4 and 5 of the Delhi Agricultural Cattle Preservation Act, 1994 is established and proved beyond doubt as held by the trial court. We do not have forensic or laboratory test report to prove that cow meat State V/s Rajesh @ Putiya Page 19 of 19 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 was being transported. To this extent, the appellant is right but we do have depositions of the police officers PW20, 25, 26 and 28, who had the occasion to see the contents in the truck and have uniformly deposed that cow meat was loaded in the offending vehicle. Trial court has rightly observed that the assertions by the said witnesses remained unchallenged. PW26 Constable Dharmender had specifically stated in the crossexamination that there were three heads of slaughted cows in the said truck.
Photographs Exhibits PW32/1 to 18 show cow heads were there in the truck. Thus, in our opinion, the trial court has rightly convicted the appellant under Section 12 of the Delhi Agricultural Cattle Preservation Act".
49. While the Hon'ble High Court agreed with the conviction of appellant therein Mohd. Saleem it does emerge as a necessary conclusion that the presence of cow meat in the Tata 407 has been confirmed.
50. Being a decision in the same chargesheet, the said finding is binding on this court.
51. Besides, the police officials who deposed during the present trial of Rajesh @ Putiya also substantiated the said fact.
52. The relevant witnesses in this exercise were PW15 and PW16. These police officials namely HC Dharmender and ASI Balbir Singh were on emergency duty on 15.05.2008 and State V/s Rajesh @ Putiya Page 20 of 20 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 deposed that on receipt of DD No. 5A, they both reached the Bajghera Mor where they found the PCR van in accidental condition and a Tata 407 vehicle lying in a garbage heap. PW15 deposed that the meat of dead cows was present in the Tata 407 whereas PW16 repeated the same assertion. More pertinently, the IO who had filed the chargesheet i.e. PW24 Inspector Jagdish Kumar stated upon query during cross examination that the animal meat/flesh found from the vehicle in the garbage dump was in the form of the slaughtered head, torso and legs of cows. He identified the same remains in the photographs Ex. PW12/A. These 18 photographs had previously been tendered in evidence by the incharge of the Mobile Crime Team i.e. PW12 Inspector Harinder Singh who had reached the place of incident alongwith the photographer namely Praveen Kumar (PW13). PW13 also affirmed the photographs Ex. PW12/2.
53. Read together, the deposition of PW15 and PW16 indicates the presence of animal flesh in the Tata 407 while the deposition of the IO (PW24) corroborates what was depicted in Ex. PW12/2 proved by PW12 and PW13.
54. Thus, notwithstanding the absence of an expert finding regarding the nature of the animal flesh, the eye witness accounts of PW15, PW16, PW24, PW12 and PW13 establish beyond any doubt that cow flesh/remains were being transported in the State V/s Rajesh @ Putiya Page 21 of 21 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 Tata 407 vehicle.
Identification of the accused.
55. The third and most crucial fact in issue, however, from the perspective of the prosecution is the question of identification of accused Rajesh @ Putiya as one of the occupants of the Tata 407 vehicle.
56. Here, the relevant witnesses, as noted in the discussion on the factum of collision, were PW4, PW11 and PW5.
57. PW4, after adopting his previous examination dated 17.08.2009, further deposed on 22.11.2014 (during examination in chief in the present trial) that accused Rajesh was also among the persons who came out from the tempo and started running away on seeing the police party.
58. While the examination in chief of PW4 during the present trial did seemingly elicit an identification of accused Rajesh, his cross examination left much wanting in this exercise. PW4 revealed during cross examination that the Tata 407 had been at a distance of 100 feet from his PCR vehicle when his team started following it. Hence, it may be termed improbable that PW4 was able to notice the features of any of the occupants of Tata 407 in the night from a distant of 100 feet and that too as the vehicle sped away.
59. The crucial identification therefore relates to the State V/s Rajesh @ Putiya Page 22 of 22 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 immediate aftermath of the accident.
60. The relevant extract from the cross examination of PW4 is reproduced below:
"When I reached at the spot, ASI Jai Pal was already injured. I reached at the spot after 23 minutes when Jagpal was injured. All the accused persons had ran away towards the drain and the bushes but I cannot tell the direction".
61. PW4 further stated that the area near the drain was dark but the place of incident was well lit due to the head lights of the private vehicles which were standing after being stopped by the PCR van. He denied the suggestion that he had been unable to see how many accused persons had run away after getting down from the Tata 407.
62. Any finding adverse to the accused in a criminal trial must be free from reasonable doubts. This court is unable to accept the mechanical identification of the accused by PW4 during examination in chief in light of the less assertive cross examination. If PW4 indeed reached the spot after ASI Jagpal had been injured and could not tell the direction in which the accused persons had run, he cannot be held with certainty to have seen them running away either. Considering that the area towards the drain and bushes was dark, PW4 was not in an appropriate position to identify the features of any of the State V/s Rajesh @ Putiya Page 23 of 23 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 absconders. The court considers it unsafe to record a finding regarding the presence of accused Rajesh in the Tata 407 on the basis of the deposition of PW4.
63. The statement of PW11 namely HC Vijay Kumar, who was also accompanied PW4 in the PCR van, did not lend any more certainty to the identification of the accused at the time of the incident.
64. This witness deposed that he had seen three persons in the driver's cabin with a fourth associate in the rear side of the vehicle of the description of Tata 407. He deposed that after causing the accident of the Tata 407 with PCR Zebra 85, the driver of the Tata 407 took his vehicle towards the bushes and all of the occupants escaped due to darkness.
65. PW11 further deposed that he had identified accused Rajesh @ Putiya on 29.04.2013 at PS Kapashera as one of the occupants of the Tata 407. PW11 then identified accused Rajesh @ Putiya during his deposition in court.
66. The identification by PW11 must be treated with great caution. This witness identified the accused for the first instance only after about five years of the incident when he was called to PS Kapashera to identify accused Rajesh @ Putiya who had been arrested on secret information by SI Lala Ram and ASI Sanjeev Kumar PW23 and PW19 respectively on 23.04.2013 at Rohini State V/s Rajesh @ Putiya Page 24 of 24 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 Courts. Infact, the accused had been produced at Rohini Courts on 23.04.2013 by the Special Staff.
67. PW11 thus cannot be trusted to so remember the features of the accused from a fleeting glance from about five years prior to identification that he could confidently identify the accused in his deposition before the court a further four years down the line i.e. on 28.11.2017.
68. The court is inclined to see the deposition of PW11 as a non genuine and rehearsed identification of the accused.
69. This leaves PW5 i.e. ASI Jagpal, who was one of the injured police officials, as the last witness relating to identification of the accused. This witness completely failed to identify the accused and stated that he could not identify the accused due to the lapse of the time and a head injury. Even upon being cross examined by the Ld. APP and the accused being pointed out to him as one of the persons who was sitting in the cabin of the tempo, PW5 repeated that he could not identify accused Rajesh @ Putiya due to lapse of time and a head injury.
70. In sum, all three witnesses relating to the identification of the accused are either disbelieved by the court or have failed to identify the accused.
71. The court is mindful that the Hon'ble High Court had believed the deposition of these three witnesses in the previous State V/s Rajesh @ Putiya Page 25 of 25 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 proceedings qua the coaccused persons in its judgment in appeal dated 31.05.2013. Yet, the course of examination of the witnesses has been contrary during the present trial of accused Rajesh @ Putiya. While PW5 has failed to identify the accused, the court has disbelieved PW11 in his identification of the accused for reason of a long lapse of time before the first identification. Besides, the supporting accounts from other witnesses in the previous trial inter alia Mahesh Chand Gupta and Mohd. Iqbal, which were also cited by the Hon'ble High Court, were not available in the present proceedings.
72. Thus, notwithstanding the proof of the intentional collision between the two vehicles and the presence of cow meat in the Tata 407, no finding of guilt can be rendered against accused Rajesh @ Putiya for reason of non identification.
73. The charge under section 302 IPC (section 304A in effect), 307 IPC and 427 IPC remains unsubstantiated qua him.
74. The charge under section 429 IPC and section 4/5(1)/12 of the DACP Act also remains not proved as the presence of the accused in the Tata 407, carrying the slaughtered cows, could not be established beyond doubt.
75. The accused is liable to be acquitted under sections 302 (304A)/307/427 IPC as well as under section 429 IPC and section 4/5(1)/12 of the DACP Act.
State V/s Rajesh @ Putiya Page 26 of 26FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022
76. This leads to the court to the last article of charge inter alia section 174 A IPC.
77. The sole strand of evidence relied upon by the prosecution in support of this allegation was one document i.e. Ex. PW24/A tendered in evidence by the IO i.e. PW24. This document was the carbon copy of an application moved by the IO before the court of the concerned MM praying that accused Potia be declared a proclaimed offender.
78. The hand written order of the Ld. MM upon the same application reads as under:
"Vide separate proceedings recorded accused Potia is declared proclaimed offender".
79. The Ld. Counsel for the accused had challenged the evidentiary value of Ex. PW24/A on the submission that accused Potiya mentioned in Ex. PW24/A could not be presumed to be the present accused namely Rajesh @ Putiya for reason of variation in the name of the father and address recorded in the same when compared with the judicial record of the present proceedings. Also, that no other evidence was recorded in support of this charge.
80. The Ld. APP had rather relied on Ex. PW24/A as a finding State V/s Rajesh @ Putiya Page 27 of 27 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 from a court of law to submit that the offence under section 174A IPC stood proved by necessary implication.
81. The court would notice that Ex. PW24/A mentioned the name of the accused as Potia, S/o Dhariya, R/o Village Bhuri Dhari, District Alwar, Rajasthan whereas the statement of the accused under section 313 Cr.PC records the particulars as Rajesh Banjara @ Putiya, S/o Dhara Banjara, R/o Raypura, Village Kishori, Alwar, Rajasthan.
82. While there is substantial similarity in the particulars in the two descriptions and the court is inclined to ignore the semantic variations, the charge under section 174A IPC does come into question for reason of insufficiency of evidence.
83. The court would note that the provision under section 82 Cr. PC is procedural in nature while section 174A IPC is a substantive offence. Each offence must be governed by its ingredients. While the court is mindful that section 82 (3) Cr. PC renders a statement from the court regarding the due publication of the proclamation as conclusive evidence of compliance with the requirements of section 82, such a mandate does not translate into unequivocal conviction under section 174A IPC. If this construction were to be accepted, every allegation under section 174A IPC would be bereft of the need for evidence and the accused shall stand convicted almost by presumption and not by State V/s Rajesh @ Putiya Page 28 of 28 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 proof.
84. Hence, the prosecution was required to prove the sequence of judicial orders and documents which culminated in the order from the Ld. MM reflected in Ex. PW24/A. However, the same were not tendered in evidence. The proclamation made by the process server never came on record, his statement was not recorded either and the purported separate proceedings mentioned in the order sheet dated 01.09.2008 were not tendered in evidence. The circumstances of the issuance and confirmation of the proceedings under section 82 Cr.PC are mired in doubt due to inadequate evidence. The court is unable to accept that the offence under section 174 A IPC, which requires it to be proved that the accused failed to appear at the specified place and time under a proclamation under section 82(1) Cr.PC can be proved only by the implication of the brief order dated 01.09.2008.
85. For his part, the accused stated during his examination under section 313 Cr.PC regarding Ex. PW24/A that the police never came to his residence nor enquired from neighbours or head of his village i.e. Pradhan/Sarpanch.
86. The court would observe that the benefit of competing interpretations in a criminal trial must accrue to the accused. The inadequate evidence does lead to an equal probability of the proclamation proceedings having remained on paper and not State V/s Rajesh @ Putiya Page 29 of 29 FIR No. 109/08 P.S. Kapeshera U/s 302/307/427/429/174A IPC & 4/5(1)/12 of the DACP Act DOD: 29.03.2022 having been executed as required under section 82 Cr. PC.
87. The accused is thus entitled to the benefit of doubt and acquittal under section 174A IPC.
88. The prosecution has failed to prove any of the articles of charge on the standard of proof beyond reasonable doubt.
89. Accused Rajesh @ Putiya is acquitted under sections 302 (304A)/307/427/174A IPC as well as under section 429 IPC and section 4/5(1)/12 of the DACP Act.
90. File be consigned to Record Room.
Digitally signedVISHAL by VISHAL GOGNE GOGNE Date: 2022.03.30 Announced in open Court today 17:08:13 +0530 On 29th March, 2022 (Vishal Gogne) Additional Sessions Judge04 Dwarka Courts, SouthWest New Delhi State V/s Rajesh @ Putiya Page 30 of 30