Delhi District Court
Fir No.248/11 PsNew Usmanpur State vs . Naeem Khan & Ors. Page No.1/45 on 31 August, 2018
IN THE COURT OF MS. SAVITRI
ADDITIONAL SESSIONS JUDGE-03
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 248/2011
Under Section : 302/120B/201/34 IPC
Police Station : New Usman Pur
Sessions Case No : 532/2016
Unique I.D. No. : 02402RO305442011
STATE
VERSUS
1. Harender Nagar @ Kakey S/o Sh. Sahaj Ram
R/o H.No.C-314, Gali no.25, Khajuri Khas, Delhi. (proceedings
against him stands abated vide order dated 19.04.2017
as he has expired)
2. Naeem Khan S/o Badrul Jamaan R/o E-522,
Gali no.17, near Gayatri Gas Godown,
Vth Pushta, Sonia Vihar, Delhi.
3. Raj Kumar Gupta @ Raju S/o Sh. Vijay Kumar
R/o H.No. 6/286, IInd floor, Sector-16, Rohini, Delhi.
4. Mukesh Tiwari S/o Sh. Rama Shankar
R/o H.No. 18B/3, Dev Nagar, Karol Bagh, Delhi.
5. Deepak S/o Sh. Munna Lal
R/o H.No.71 D-block, Khushal Park, Loni, Ghaziabad, U.P. (JCL)
..... Accused persons
Name and particulars of : SI Amit Kumar
complainant
Date of Institution : 20.07.2011
Date of Committal : 24.10.2011
Date of receiving in this Court : 18.01.2014
Date of reserving judgment : 01.08.2018
Date of pronouncement : 23.08.2018
Decision : Conviction
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.1/45
J U D G M E N T:
1. The present FIR for murder of deceased Joginder was registered in the intervening night of 08/09.07.2011. During the investigation conducted by the police the following facts emerged:
i) That deceased was an auto driver and also doing black of cinema tickets at Liberty Cinema Karol Bagh in partnership with one Shyam Kishore Tiwari and one of the accused namely Mukesh Tiwari. Around 20 days before the incident dated 08.07.2011 when the deceased was attacked by some unknown assailants, which resulted in his death on 09.07.2011, there had been a quarrel between deceased and accused Mukesh Tiwari.
ii) Accused Mukesh Tiwari was getting 25% of the profit of tickets blacking while remaining profit was shared equally by deceased and his friend witness Shyam Kishore Tiwari. Accused Mukesh Tiwari demanded equal share of 33% in the profit which was declined by deceased and Shyam Kishore Tiwari. During quarrel, deceased had beaten Mukesh Tiwari and expelled him from working at Liberty Cinema Hall. Accused Raju @ Rajkumar Gupta, who was also working at Liberty Cinema for about last 1-2 years, also had to leave Liberty Cinema because of deceased Joginder.
iii) It further surfaced during investigation that Mukesh Tiwari and Rajkumar Gupta @ Raju had conspired to eliminate deceased Joginder as Muksh Tiwari was upset after being removed from the business and wanted to avenge his beatings so he contacted Rajkumar Gupta who also wanted to work at Liberty Cinema.FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.2/45
Rajkumar Gupta contacted his friend Kakey @ Harinder and both of them (Rajkumar Gupta and Mukesh Tiwari) had shown deceased and his auto to Kake. Kake further involved one Deepak (JCL), Nepali, Gabbar @ Naeem Khan, Chhota Salim and Mota Salim @ Vijay in this conspiracy. Mohan @ Nepali and Deepak were also shown the deceased and his auto rickshaw by co-accused Rajkumar and Mukesh Tiwari and also the way deceased took towards his home.
2. It was decided amongst the accused persons Rajkumar @ Raju, Mukesh Tiwari and Harender @ Kake that they would thrash and stab deceased so badly that he would remain confined to bed for atleast 6-7 months and in the meantime, they would capture the business at Liberty Cinema because Shyam Kishore Tiwari alone could not do anything. Accused Raju, Mukesh and Harender @ Kake decided to share the profit equally. On the night of 08.07.2011 at 10 pm when Joginder started for his house from Liberty Cinema in his auto, JCL Deepak and Nepali chased him on Pulsar motorcycle and also informed the other accused regarding the deceased having departed from Liberty Cinema. Gabbar, Chota Salim and Mota Salim armed with dandas and Kake armed with knife came to the spot i.e. a lonely stretch at Power house near 5th Pushta, New Usmanpur, in the Honda City car of accused Raju, which he was driving. Raju dropped these persons at the spot and waited for them at some distance. In this way accused Rajkumar Gupta @ Raju and Mukesh FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.3/45 Tiwari did not participate in actual killing of the deceased. At about 10.45 pm when deceased Joginder reached at the spot, which was on way to his house, all the persons mentioned above assaulted him with their weapons. JCL Deepak and Nepali used fists and blows only. Jogender was seriously injured, was got admitted to ISBT Trauma Centre by PCR and succumbed to his injuries on next day i.e. 09.07.2011. As per the postmortem report, deceased died due to injuries to his chest and abdomen by sharp edged weapon. The body bore many other injuries as well.
3. On 14.07.2011 accused Mukesh Tiwari and Raju were arrested at the instance of Shyam Kishore Tiwari, they made their disclosure statements and at the instance of accused Raju, his car was recovered as also one wooden danda, used during commission of offence, from the dicky.
4. On 20.07.2011 Kake @ Harender & Naeem Khan @ Gabbar were arrested in this case after apprehension by staff of Crime Branch. They also made disclosure statements and refused to participate in TIP. At the instance of accused Naeem Khan, auto of deceased and some documents of the same were recovered. JCL Deepak was also arrested. He was later on sent to JJB for trial after he was proved to be a juvenile on the date of offence. Other accused i.e. Vijay @ Mota Saleem and Mohan @ Nepali and Chota Saleem absconded.
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.4/45After this investigation, challan was filed in the matter, which was committed to sessions court. Later on by way of supplementary challan, CDRs of accused persons and the FSL result were also placed on record.
5. After hearing arguments charge was framed u/s. 302/120B IPC on 06.01.2012 against all the accused persons sent for trial till then. Separate charge u/s. 302/34 IPC was framed against the accused Harender Nagar and Naeem Khan and Deepak (JCL) to which they pleaded not guilty and claimed trial. Till that time accused Deepak was not declared juvenile. An additional charge u/s. 201 IPC was also framed against accused Naeem Khan @ Gabbar. It is important to note that during pendency of the present trial, accused Harender Nagar @ Kake expired.
6. To prove its case prosecution has examined PW-1 Virender Singh and PW-2 Ram Kumar as the persons who had identified the dead-body, having known the deceased. PW-3 Sonu is the person who called at 100 number after seeing the deceased in badly injured condition on the spot. During his cross-examination he has denied the suggestion that there was no street light pole in the 200-300 meter area after 5th Pushta where the incident took place. He voluntarily stated that there was a high mast light at the spot.
7. PW-29 HC Satpal Singh from PCR had attended the call FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.5/45 and had taken the victim to Trauma Centre. In his cross-examination he stated that injured's wife told him on telephone that probably some neighbours with whom injured had a quarrel day back were behind the attack while injured told him that he had no enmity with anyone and did not know the assailants; thus ruling out the involvement of the neighbours.
8. PW-4 is the eye witness of the incident as per the prosecution case. He identified accused Naeem Khan @ Gabbar as one of the assailants, who was having danda at the time of incident. He gave account of the incident in his examination-in-chief to the effect that he came to the spot from Azadpur mandi where he was working, at about 9.30 pm, to go to his house located at Gamri Extension, 5-1/2 Pushta. He was on foot when he reached the spot. He saw that about 5-6 persons were giving beatings to one person, 2/3 were having dandas in their hands, one was having knife and others were beating with kicks and punch blows. Nobody intervened despite many public persons being at the spot seeing knife in the hand of one assailant. Thereafter some assailants ran away from there on foot. One left in a TSR and two left on motorcycle.
9. One important aspect of testimony of this witness is that he neither identified accused Harender Nagar in the court nor the knife used by him. He also denied the suggestions put by the State about him. In his cross-examination he admitted that he neither FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.6/45 raised alarm nor made any call to PS despite having allegedly witnessed the incident. He denied the suggestion that he did not do so as he had not witnessed the incident or that he was not present at the spot at the time of incident.
10. During his evidence, he further stated that he saw the IO on 10.07.2011 at about 10.30pm at the spot and told him about the incident and his statement was recorded by the IO on that day. He also stated that he again met the IO on 21.07.2011 near the spot where IO was making inquiries. He further stated that on the same day in the evening at 5.00 pm his another statement was recorded by the IO in the PS where he had identified accused Gabbar @ Naeem. He denied the suggestion that he was deposing falsely under the pressure of IO.
11. PW-5 is Shyam Kishore Tiwari. He has deposed on the lines of prosecution case and has mentioned about the quarrel dated 19.06.2011 between deceased Jogender and accused Mukesh. He further deposed that on 23.06.2011 in the evening at 6.00/6.30 pm he came to Liberty Cinema and found accused Mukesh and Rajkumar were talking to each other at the corner of parking located at the back side of Liberty Cinema. On 30.06.2011 at 7.00/7.30 pm he again saw both the accused and third accused Harender Nagar talking to each other at the same place as previously. Accused Mukesh was showing TSR of deceased parked nearby too accused FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.7/45 Raju and Harender Nagar. On 07.07.2011 at 6.00/6.30 pm i.e. just one day prior to the incident of assault with the deceased, he saw accused Mukesh Tiwari, Harender Nagar, JCL Deepak and one more person (who was later identified as Mohan @ Nepali) talking to each other at the same place. At that time also accused Mukesh was showing the TSR of the deceased, parked there, to other persons. He was with the deceased at Liberty Cinema till about 9.45 to 10.00 pm on 08.07.2011 i.e. the date of assault, whereafter both of them left for their respective houses. At about 11.00 pm he made a telephonic call to deceased on his mobile but someone else answered and informed him about the incident. He then went to hospital and saw the deceased in serious condition. He cried during his testimony stating that deceased was like a God to him and that accused Mukesh Tiwari and Raju had got him killed. He further deposed that on 14.07.2011 accused Mukesh Tiwari and Raju were arrested at his instance while they were standing near Liberty Cinema and that the disclosure statement of both of them were recorded in his presence wherein they confessed about their involvement in murder of deceased. Accused Raju confessed that he was present near the spot with his car no. DL-6CA-8719. He further confessed that auto of deceased Jogender was taken by co- accused Gabbar. Accused Mukesh Tiwari disclosed that he had shown the way of home of deceased Jogender to accused Raju, Harender Nagar and other co-accused as he had visited the house of deceased, previously with him. He proved the signature on arrest FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.8/45 and personal search memo of both accused Raju and Mukesh Tiwari.
12. He further deposed that at the instance of accused Raju, his car was recovered and on checking the same one danda (which was leg of chair) was recovered from dicky. He has proved the seizure memo of car and danda. He has also proved the signature on disclosure statements of both the accused persons.
13. The witness PW-5 also identified the car recovered from accused Raj Kumar and its photographs as well as the danda contained therein. He further stated qua accused Naeem Khan that he had not seen him at Liberty Cinema in company of accused Raju and Mukesh Tiwari. He voluntarily deposed that it was some other person. He denied the suggestion that CCTV were installed and working at ticket counter as well as in the parking of Liberty Cinema (where he had seen the accused persons talking to each other) He further deposed that generally he and deceased used to remain together at the Liberty Cinema before going to their respective houses at night. He denied the suggestion that police had detained him in this matter initially as a suspect because he was last seen together with deceased on 08.07.2011. He denied the suggestion that he cooked up a false story in order to save himself from being involved in this case as accused, after due deliberation and consultation with police. He denied the suggestion that he was FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.9/45 planted witness.
14. The witness was confronted by ld. counsel for accused Mukesh with some part of his 161 statements wherein he had omitted to mention that he had seen accused Mukesh and Raju talking to each other on 23.06.2011 at back side parking of Liberty Cinema and that thereafter both of them left from there in 10 minutes and that accused Mukesh was showing TSR of deceased to accused Raju and Harender Nagar (since deceased) on 30.06.2011 and that he had become suspicious/ apprehensive about them. He denied the suggestion that he had falsely implicated accused Mukesh Tiwari as Mukesh was co-owner of the property where the witness was residing. He also denied the suggestion that there was any quarrel between him and accused Raju and stated that hot words were exchanged between accused Raju and deceased. He admitted the suggestion put to him by ld. counsel for accused Rajkumar that he did not meet police official on 8th July, 9th July and 10 July 2011. He denied the suggestion that accused Mukesh Tiwari & Raju were not present at Liberty Cinema on 14.07.2011 nor car of accused Raju was parked there.
15. As per the evidence of PW-23 HC Nathu Ram and PW- 27 Ct. Pankaj Sharma, both of them were also present along with IO and witness while all the above mentioned proceedings were conducted and both the accused were arrested. They have also FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.10/45 deposed on the same lines as deposed by PW-5 and identified the incriminating articles recovered from the accused persons in their presence. PW-23 HC Nathu Ram was cross-examined by defence and stated that keys of Honda City car were provided to IO by accused Raju. He stated that IO did not ask any customer of nearby petrol pump (which was open and functional at that time) or any employee of Liberty Cinema to join the proceedings. He denied the other suggestions put to him by defence which were contrary to his deposition.
16. PW-6 Khushbu, wife of accused Rajumar is the formal witness, who only produced Honda City car of Rajkumar no. DL-6CA- 8719 and identified its photographs being registered owner.
17. PW-7 Babita, wife of late accused Harender Nagar, produced the motorcycle no. DL-5SAA-9613 and proved its photographs and R/C, which as per the prosecution case was used during the commission of offence and was recovered from his house.
18. PW-8 Poonam wife of deceased Joginder produced his TSR bearing no. DL-1RG-1874 and identified its photographs, which was released to her on superdari by court order.
19. PW-9 Duty Officer proved the FIR.PW-10 HC Narayan Singh recorded DD entry regarding stabbing of deceased near power FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.11/45 house, 5th Pushta.
20. PW-11 SI Mukesh kumar is the draftsman who prepared scaled site plan of the spot. In his cross-examination he stated that he did not notice whether there were any street light poles near the spot. He admittedly did not make mention of any street light in the scaled site plan of the spot.
21. PW-13 ASI Om Prakash is yet another formal witness who proved the PCR form. PW-14 HC Satish Kumar is the MHCM who proved the entries regarding the depositing of the case properties in malkhana and movement of the same. He denied that entries were anti-dated and anti-time or that he had tampered with the case properties. Another formal witness PW-22 Ct. Azad Singh deposited the case properties of the present matter (5 in number) at FSL. In his cross-examination he denied that the pullandas were not duly sealed. PW-15 is SI Gurcharan who recorded DD no.35B about the death of deceased on information received from ISBT Trauma Centre from Duty Constable. PW-17 HC Jag Narayan is the MHCM of Crime Branch who had deposited in malkhana Samsung mobile phones and one Airtel SIM card each recovered from accused Harender Nagar and Naeem Khan and later on sent the same to PS- New Usmanpur for the purpose of present case. PW-20 Ct. Praveen is another formal witness who transported the personal search articles of accused Harender Nagar and Naeem Khan from Crime FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.12/45 Branch Malkhana to PS-New Usmanpur.
22. PW-26 ASI Virender Singh is another formal witness from Crime Branch who had arrested accused Harender @ Kake and Naeem Khan at the instance of secret informer and prepared kalandra u/s. 41.1(c) Cr.P.C. when the two accused disclosed about their involvement in the present matter and he also sent intimation to PS-New Usmanpur. PW-28 is Ms. Shuchi Laler, the then Ld. MM who proved the TIP proceedings of JCL Deepak who was identified by eye witness Kamal Singh.
23. PW-12 is the medical witness who prepared the MLC of the deceased and proved the same. As per his report, deceased had suffered total 8 injuries, out of which, three were sharp and remaining were blunt. PW-16 Dr. Meghali Kelkar is the autopsy surgeon who has given detailed description of injuries found on the body of deceased. As per her, the cause of death was anti-mortem injuries to chest and abdomen produced by a sharp edged weapon (as per the prosecution case, knife was used by accused Harender Nagar, who died during trial).
24. PW-18 Ct. Subodh had visited the spot along with SI Amit, the first IO on receipt of DD no.38A about incident of assault with victim. Injured had been removed to Trauma Centre by PCR by then and no eye witness was present there. In his presence, SI Amit FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.13/45 lifted blood stained earth from the spot and also seized the blood stained clothes of victim as were handed over by doctors to PW-25 Duty Ct. Shishupal who also got the deceased admitted in ISBT Trauma Centre after PCR brought him there. In his cross- examination by ld. counsel for accused, PW-18 Ct. Subodh stated that entire area near the spot has no electric street light installed and it remained in darkness during night.
25. As deposed by PW-19 Ct. Sheehspal and PW-21 HC Parwinder that in their presence, JCL Deepak was arrested on 17.08.2011 and his disclosure statement was recorded by IO/Inspector Arjun Singh when he surrendered before court. Ct. Sheeshpal remained with IO while recovery of motorcycle bearing registration no. DL-5SA-9613 was effected at the instance of Deepak from the house of accused Harender Nagar and the same was seized by the IO. Ct. Sheeshpal also identified the motorcycle in the court and denied the suggestions to the contrary. In his cross- examination by ld. counsel for accused he stated that on 09.07.2011 IO had met relatives of deceased and also witness Shyam Kishore Tiwari at Trauma Centre and made inquiries from them whereas witness Shyam Kishore Tiwari had stated in his evidence that he had never met with police on 8th July, 9th July and 10th July.
26. PW-24 Ct. Rinku is the witness to arrest and investigation during PC of accused Harender Nagar and Naeem FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.14/45 Khan by IO on 20.07.2011 after they were produced before MM court by the Crime Branch staff. In pursuance of disclosure of accused Naeem Khan, the witness, alongwith other members of police team, went to Sector-18 Rohini but the knife allegedly used by accused in stabbing the victim could not be recovered. Thereafter police party was led by accused Naeem Khan, to the place where auto of deceased was parked and it was seized by the IO. Accused Naeem Khan led the police party to his home and got recovered documents of the auto, which were also seized in presence of the witness. He identified both the accused and photographs of the auto. Nothing material could be elicited during his cross except that he signed the seizure memo of documents at police station.
27. PW-27 Ct. Pankaj Sharma, who was also witness to arrest and recovery of incriminating articles at the instance of accused Rajkumar @ Raju and Mukesh, alongwith witness Shyam Kishore Tiwari was cross-examined by defence. During his cross examination he denied the suggestion that accused Rajkumar was picked up from his house on 13.07.2011 and was falsely implicated or that no recovery was effected. He also denied the suggestion that witness Shyam Kishore Tiwari was introduced as a witness at a later stage. He stated that he alongwith Ct. Rinku/PW-24 had signed the seizure memo of auto and also of its documents recovered at the instance of accused Naeem Khan, at the spot of recovery while Ct. Rinku stated otherwise. He denied the suggestion that accused FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.15/45 Mukesh Tiwari had been picked up by the police 4-5 days prior to 14.07.2011 and was detained illegally.
28. PW-30 is first IO SI Amit Kumar, who went to the spot along with PW Ct. Subodh/PW-18. He deposed on the same lines and proved the ruqqa about the incident. He deposed about lifting the blood on gauze and seizing the clothes of the victim. He contacted the PCR caller PW-3 Sonu, who told him that he had not witnessed the incident. Further that he collected the dead-body after receiving information of the death of the victim. Later on the investigation was handed over to PW-31 IO/Inspector Arjun Singh. In his cross by ld. counsel for the accused he stated that he had taken the draftsman to the spot on 25.07.2011 but did not tell about the location of eye witness at the spot. Further that, by that time he was aware that some eye witness had been found by the IO but the witness did not know his particulars. He denied the suggestions to the contrary.
29. Last witness is PW-31 Inspector Arjun Singh, investigating officer of this case, after section 302 IPC was added in this case, due to death of injured on 09.07.2011 i.e. one day after incident. He has given the details of the investigation in the matter and the manner in which the accused persons were arrested by him and incriminating evidence recovered in pursuance of disclosures of different accused persons.
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.16/4530. He deposed that eye witness PW-4 Kamal Singh met him near the spot on 10.07.2011 and he recorded his statement and on next day i.e. 11.07.2011 PW-5 Shyam Kishore Tiwari met him at the PS and told that deceased was into the business of black marketing of movie tickets with him and accused Mukesh Tiwari. A dispute had taken place between deceased Joginder and accused Mukesh Tiwari and Mukesh Tiwari was thrown out of business. He also made reference to accused Raju based on same, IO searched for the accused/suspects and accordingly arrested them. Accused Rajkumar got recovered the Honda City car DL-6CA-8719 and disclosed to have used the same in commission of offence for transporting the co-accused with him. He had the keys with him and the car was registered in the name of his wife Khushboo. Also the leg of chair, which he disclosed to be as one of the weapons of offence was also recovered from dicky of this car.
31. On 15.07.2011 while during PC, accused Raju had led the police team to the house of late accused Harender Nagar, who was not present there. He also led the police party to the house of the accused Naeem Khan. He was also not there.
Later on, he arrested accused Harender Nagar and accused Naeem Khan on 20.07.2011 after Crime branch produced them before the Ld. Illaqa MM as kalandra u/s. 41.1(c) was prepared against them wherein they disclosed their involvement in the present FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.17/45 case. Both of them refused for the TIP. Weapon of offence i.e. knife as used by accused Harender as per the disclosure statement of himself and accused Raju could not be recovered from Rohini, Sector-16, where it was allegedly thrown. The IO further deposed about having recovered the TSR No. DL-1RG-1870 of deceased from near Gopalpur village outside a government office and many other documents related to it i.e. Ex.PW-31/F1 to F13 (colly.) from the house of accused Naeem, at his instance. Both accused Harender Nagar and Naeem Khan also led them to the houses of JCL Deepak, Vijay @ Mota Saleem and Mohan @ Nepali but none of the accused were found at their respective houses. All of them were involved in murder of deceased as per the disclosure statements of accused persons, arrested till then. He also mentioned about identification of accused Harender by both the public witnesses ie. Kamal Singh and Shyam Kishore Tiwari. As per him, accused Naeem was identified by Kamal Singh (eye witness) only.
32. Thereafter IO had deposed about arrest of accused JCL Deepak after his surrender and recovery of black motorcycle Pulsar, at his instance from the house of co-accused Harender Nagar (registered in the name of his wife), used during commission of offence and its seizure by him. He also deposed about sending of some of the case properties to the FSL including the weapon of offence i.e. leg of chair recovered from accused Rajkumar. He further deposed about having applied and obtained the CDRs and CAFs of FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.18/45 different mobile phones used by accused persons. He identified different case properties and accused persons in the court. At the time of filing of charge-sheet in this matter by him, co-accused Vijay @ Mota Saleem, Chota Saleem and Mohan @ Nepali were absconding.
33. He was extensively cross-examined by defence. He denied the suggestions put to him, which were contrary to the prosecution case. During his cross-examination he stated that witness Shyam Kishore Tiwari had met him for the first time in the evening of 11th July and then on 13th and 14th July 2011. He further sated on 14.07.2011 when he arrested accused Mukesh Tiwari and Raju, public persons including employees of nearby Petrol pump did not join the proceedings despite his request. He further stated that though he made inquiries from public persons during different stages of investigation but did not record statements of many of them either because they were not aware about the substantial facts of the case or they were not willing to join investigation. He further deposed that he did not collect bus tickets purchased by witness Kamal Singh on 8th, 9th and 10th July, 2011 as the same were not available with him. Further he did not verify the bus number which the witness used to take every day to and fro his workplace and residence. He also did not verify the walking route taken by Kamal Singh while returning from work and going from his house to bus stop. He also admitted that he did not ask for any FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.19/45 identity card or other documents relating to his address from witness including his Aadhar/election ID etc. He denied the suggestion that he concocted a false story and thereafter prepared anti-dated statement of witness Kamal Singh and that there was no eye witness of the incident and further there was no witness of conspiracy also and even Shyam Kishore Tiwari was a planted witness.
34. He deposed that when he met the eye witness Kamal Singh on 10.07.2011, SI Amit was present with him as also two/three other police persons. He denied the suggestion that Kamal Singh was planted witness and that is why it took the police one or two days to find and plant him or that he had not met witness on 10th July, 2011. He admitted that he was not aware as to on whose instance, the rough site plan of the spot was prepared by first IO/SI Amit and that there was no point or mark on the rough as well as scaled site plan, which would indicate the presence/position of Kamal Singh on the spot on 9th July, 2011. He further stated that he had a general talk with witness Shyam Kishore Tiwari on 10.07.2011 in the presence of whole police team including SI Girish Ratori and SI Amit Kumar etc. but recorded his first statement only on 11.07.2011. He denied the suggestion that he was aware that CCTVs camera had been installed at Liberty Cinema but he deliberately did not obtain CCTV footage to verify the facts of the case. He denied the suggestion that witness Shyam Kishore Tiwari was the prime suspect in the matter and later on made a false witness in order to satisfy his FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.20/45 personal issues and to implicate the accused persons. He further denied that police had detained Shyam Kishore Tiwari in PS from 8th July, 2011 onwards and threatened and pressurized him and then planted him as a witness in this matter; though he admitted that in the beginning Shyam Kishore Tiwari was the suspect in the eyes of police since 10.07.2011 because he was the person last seen with the deceased. IO further deposed that after receiving his CDRs, the view was changed (though the IO has not placed on record the CDRs of witness Shyam Kishore Tiwari). He further stated that seizure memos regarding recovery of auto Ex. PW-24/A and its document Ex.PW-24/B were prepared by him and signed by the witnesses at the place of recovery itself whereas one witness of recovery PW-24 stated that he had signed in the PS. IO denied the suggestion that the TSR and its documents had already been recovered by Crime Branch staff or that he took signature of Naeem Khan on blank papers to falsely implicate him or that police was already aware of house of Naeem Khan but falsely showed the date of 20.07.2011 as the date of recovery with a view to plant documents on accused Naeem Khan after his arrest on 20.07.2011.
35. Statement of accused persons have been recorded wherein they have denied all the allegations against them and have stated that they are innocent and have been falsely implicated in the present case.
Accused Rajkumar Gupta stated that he was lifted from his FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.21/45 house on 13.08.2011 and confined in lockup and was not taken anywhere. Accused Rajkumar admitted that he possessed a Samsung mobile phone with Vodafone connection at the time of his arrest.
Accused Mukesh Tiwari has admitted that he possessed the mobile phone, though with Airtel connection. Accused Mukesh stated that he was called at PS from his home on 09.07.2011 and remained under illegal confinement of police.
Accused Naeem Khan @ Gabbar has stated that he possessed a Nokia mobile phone at the time of his arrest. He admitted that TSR no. DL-1R-J1874 was produced before the court by widow of the deceased.
36. The defence has examined Sh. Om Prakash, stated to be manager of Liberty Cinema as the only defence witness. He stated that after the year 2005, the Liberty Cinema had installed CCTV cameras in its compound and 9 CCTVs were functioning in the year 2011 at different locations of the Cinema including parking area and maintained recording for 30 days period. In response to the court queries, the witness stated that the cameras covered only the inside view of the compound of Liberty Cinema and not anything outside. He could not produce any documentary proof regarding his employment as manager of Liberty Cinema. He denied the suggestion that no CCTVs were installed at Liberty Cinema in the year 2011 or that the documents produced by him regarding FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.22/45 maintenance and purchase of cameras starting from the year 2008 were prepared later in connivance with the accused persons. Perusal of these documents would show that some CCTV cameras might have been purchased by the Liberty Cinema towards the year 2008 but so far as the DVR is concerned, it was only on 24.02.2010 that Liberty Cinema had shown interest towards purchase of DVR and two documents regarding service of DVR of May and December, 2011 are on record while IO showed his ignorance about installation of CCTVs and recording of the footage of same being available with Liberty cinema. The DW Sh. Om Prakash Sharma answered in response to court query that the CCTV covered only inside view of Liberty Cinema and not anything outside as the same were installed for the purpose of keeping surveillance for security purposes as there had been a bomb blast in the cinema previously. Other than the mere oral statement of the witness, there is nothing on record to show that recording for 30 days could be available in the DVR. Considering the above, even if the footage was available and collected, it would not have been of much help to the police because as per the witness the accused persons, the witness himself and the victim used to be near the compound of Liberty Cinema and not inside it and deceased parked his auto at some shop near the parking. Considering the circumstances in which the CCTVs had been installed post an incident of bomb blast and consequent security checks, any person other than one having come to watch movie could not have been allowed inside the compound of cinema.
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.23/45Even otherwise, the fact that the CCTV footage was not collected is not sufficient to discard the testimony of eye witness Shyam Kishore Tiwari on the aspects deposed by him. The CCTV footage, if available, would have been another piece of corroborative evidence to the testimony of this witness.
37. I have heard ld. counsels for the accused persons and have been through the case file.
38. Ld. counsel for accused persons has relied upon the following judgments:
i) Ganesh Bhavan Patel & another Vs. State of Maharashtra AIR 1979 Supreme Court 135 It is to the effect that where the lodging of FIR and consequently recording of statement of witnesses is delayed, there is scope for manipulation.
ii) Sarvesh Kumar Vs. State (Govt. of NCT of Delhi) 229 (2016) DLT 640 (DB) In this case, Hon'ble Delhi High court observed that where there are major and substantial lacunae during the investigation, accused cannot be convicted and all important details of investigation and interrogation of witnesses must be entered in case diary by IO.
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.24/45 iii) Nanak Chand Vs. The State of Delhi
1991 JCC 1
iv) Munni Lal Vs. The State
1995 JCC 110
These judgments are to the effect that attempts should be made to join public witnesses at the time of recovery.
v) Mani Vs. State of Tamil Nadu
2008 CLJ 1046
This judgment is on the aspect that any incident of crime must be reported promptly.
vii) Tulshiram Bhanudas Kambale & Ors.
Vs. State of Maharashtra
2000 C.L.J. 1566
The judgment says that the case properties/incriminating articles must be immediately sealed upon recovery and further that it is dangerous to rely upon sole testimony of a witness and convict an accused, if the witness has not fully supported the case of prosecution.
viii) Juwarsingh & ors. Vs. The State of Madhya Pradesh 1980 Crl.L.J. 1418 If the oral testimony of certain witnesses is contrary to the facts proved or if the testimony is unacceptable on the face of it, FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.25/45 the court may discard it even if there is no cross-examination by the defence.
ix) Anil Kumar Vs. State of Punjab
V (2000) SLT 251
A witness can be termed as unreliable, if he does not mention about any circumstance u/s. 161 statement and deposes about the same in his evidence before the court only. But it has to be appreciated in the facts and circumstances of each case.
x) Arshad Hussain Vs. State of Rajasthan
V (2013) SLT 509
When the evidence about the genesis and the manner of incident is doubtful and if it is seen from the evidence that the incident had not taken place in the manner as alleged by prosecution, the accused cannot be convicted.
xi) Iqbal & Anr. Vs. State of U.P.
V (2015) SLT 194
Its a judgment on its own facts and it is mentioned in the same that when the witness could not have identified the accused due to darkness at the spot of incident, accused has to be acquitted.
xii) Bhagirath Vs. State of Madhya Pradesh
AIR 1976 SC 975
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.26/45
It was held that court cannot substitute a new story other than the case of prosecution to convict the accused. Prosecution must prove the facts it alleges.
xiii) Pandurang & Ors. Vs. State of Hyderabad
AIR 1955 SC 216
The judgment on its own facts and laying down that to attract the section 34 IPC there must be prior meeting of minds.
39. All these judgments lay down the basic principles about foundation of criminal trial. A question of delay, weight to be attached to the testimony of particular witness, not joining the public witnesses during investigation/recovery proceedings, testimony of any witness being unacceptable on the face of it, the evidence about prior meeting of minds for vicarious criminal liability under Section 34 IPC are the aspects dependent upon the circumstances of each case. I have given my careful consideration to the judgments cited by the defence.
40. It has been argued by the defence that the accused persons have been falsely implicated relying upon so-called eye witness Kamal Singh who is totally unreliable and a planted witness. Further the witness of alleged conspiracy namely Shyam Kishore Tiwari and business associate of victim in black marketing of cinema FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.27/45 tickets has falsely named the accused persons, in connivance with police to satisfy his personal matters, though the victim was last seen alive in the company of this witness and he was admittedly a suspect in the eyes of police after the incident happened.
41. The Defence has further argued that the very possibility of witness Kamal Singh being a planted one is apparent from the fact that he did not disclose anything about the incident witnessed by him to anyone for a period of two days. Had he actually witnessed the incident, he would not have done so. Secondly, the IO did not make any attempts to verify the authenticity of the version put forth by the witness. He did not inquire about his personal details, his route of travel from home to work and back, he did not seize his traveling ticket for the date of incident. Thirdly, the prosecution witness PW-18 Ct Subodh stated in his evidence that the spot of incident used to remain under darkness during night and there were no street lights there and admittedly the incident had taken place after 10.00 pm on 8th July, 2011. Fourthly, the reliability of this witness is questionable on account of the fact that he had done pick and choose when it came to identifying the assailants. While he identified accused Naeem Khan as the assailant beating the deceased with a danda, he refused to identify the alleged assailant Harender Nagar who used knife to give fatal blows to the deceased, as per the case of prosecution. It would not have been so, had he been a truthful witness. Fifthly, though the IO claimed to have met the eye witness FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.28/45 in presence of SI Amit, the first IO but SI Amit did not mention any such thing during his entire evidence. He merely stated about having an idea that the IO had found an eye witness in this case, meaning thereby, that IO never met Kamal Singh in his presence. Sixthly, admittedly the site plan neither mentioned any street light on the spot nor the position of alleged eye witness Kamal Singh at the spot. Had there been street light or eye witness, both of them would have found mention in site plan.
42. On the other hand, Ld. Addl. PP for State has argued that PW-3 the PCR caller had stated during his cross-examination that there was a high mast light at the spot and refuted the suggestion put to him by the defence that the spot was in dark. Secondly, Kamal Singh was a natural witness considering that he used to pass daily from near the spot on foot after he used to come home from his work at Azadpur Mandi. Not only this, he was served at an address near to the place of incident i.e Gamri Extn., Bhajanpura, 5-1/2 Pushta while he was summoned as a witness by the court. The mere fact that the IO did not verify his employment/ identity and residence proof documents does not make him any less an eye witness. Particularly, when he had identified accused Naeem Khan using danda against the victim and had further deposed that he had left the spot in an auto and later on the auto of deceased was recovered at the instance of accused Naeem Khan along with its original documents. Had he been a planted witness, he would have FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.29/45 surely identified accused Harender Nagar also. Ld. Addl. PP has argued that IO stated to have examined the eye witness in the presence of first IO/SI Amit whereas SI Amit did not mention it in his evidence, is a minor discrepancy in the evidence of those two witnesses and it cannot discredit the testimony of Kamal Singh considering that the police team consisted of another SI namely SI Girish Ratori also. SI Girish Ratori has not been examined as a witness but has been mentioned as a part of police team and therefore, there may be some confusion due to lapse of memory considering the time gap of 6-7 years between investigation and actual recording of evidence. When any witness is examined at length it is quiet possible for him to make some discrepancy. No true witness can possibly escape from making some discrepant details. It is only when the discrepancy in the evidence of witness are too incompatible with the credibility of his version then the court is justified in discarding his evidence. It has been observed by Hon'ble Supreme Court in Rammi @ Rameshwar Vs. State of Madhya Pradesh, available on https://Indiankanoon.org decided on 21.09.99.
43. Regarding the witness having kept quiet for two days, the State has argued that different people react differently to the same incident witnessed by all of them and their conduct would therefore be different. There are variations in normal human nature, it cannot be a cast-iron reaction to be followed as a model by everyone witnessing such incidents. This has been so observed by FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.30/45 Hon'ble Supreme Court of India in Rammi @ Rameshwar Vs. State of Madhya Pradesh, available on https://Indiankanoon.org decided on 21.09.99 by Justice K.T Thomas and Justice A.P. Mishra. In the present case, the eye witness was an illiterate labourer, therefore, his conduct cannot be called to be unreasonable.
I am also of the view that the PCR caller Sonu/PW-3 had no motive to falsely assert that there was high mast light on the spot, though, it is a lapse on the part of IO to not show the light in the site plan.
44. In view of the rival submissions put forth by both the sides, I am of the opinion that the testimony of this witness can neither be totally accepted nor can be discarded in toto, rather it should be corroborated by some other independent witness, if available on record. Considering that the eye witness Kamal Singh deposed that he had seen one assailant leaving the spot in an auto after the assault upon deceased and the auto of deceased, which he was driving at the time when assault had taken place, was later on recovered at the instance of accused Naeem Khan @ Gabbar along with its documents is another circumstance that establishes connection of accused Naeem Khan with the murder of deceased, particularly, when he has been identified in court by the eye witness as one of the assailants, who was armed with a danda and was beating the deceased with it. This is also in tune with the disclosure statement of accused Rajkumar Gupta @ Raju, who was arrested on FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.31/45 14.07.2011 i.e. prior to the arrest of accused Naeem Khan @ Gabbar. The disclosure statement of accused Rajkumar Gupta @ Raju is not hit by Section 27 of Indian Evidence Act because this fact was discovered in consequence of information received from co- accused Rajkumar Gupta during his police custody and this much of information that Rajkumar was aware that the auto of deceased was taken by accused Naeem Khan @ Gabbar can be proved u/s. 27 Indian Evidence Act because the term fact not only includes the physical material recovered in pursuance of information but also a non-physical, intangible material i.e. an information about a fact. This in nutshell proves that Rajkumar had information that auto of deceased was taken by accused Naeem Khan @ Gabbar and Naeem Khan had information as to where the auto and its documents were. Proving of this fact also gives a reasonable ground to believe the existence of a conspiracy between two of them.
45. The defence has argued that the alleged recovery of auto of deceased at the instance of accused Naeem Khan is doubtful because this auto was found parked at a public place in an open area and a specific knowledge about its having been so parked cannot be attributed to accused Naeem Khan. Further ld. counsel for accused has tried to make out a case of this recovery being doubtful by pointing to some minor contradictions between the depositions of the two witnesses of recovery namely Ct. Rinku/PW-24 and Ct. Pankaj/PW-27. The IO stated that the auto was recovered from near FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.32/45 the office of Flood and Irrigation Department whereas the constables stated otherwise. PW-24 called it PWD office whereas PW-27 named it Jal Board office. Considering that both of them are constables, lowly employed police staff having limited education, their depositions in this manner are not of much consequence. Particularly, when they had given very detailed and similar account of recoveries made and have successfully stood the test of cross- examination. Otherwise also it woulds be a news for many of Delhiites that the government of Delhi has a Flood and Irrigation department also. Secondly, the defence has pointed out another contradiction in the statements of recovery witnesses to the effect that while Ct. Rinku stated that he signed the seizure memo at the police station, the other two witnesses i.e. IO and Ct. Pankaj stated that the memos about recovery of auto and its documents were prepared and signed at the spots of recoveries itself. This in my view is not sufficient to discard the recoveries. The ground regarding non joining of public witnesses is also not tenable as it is commonly observed that no person wants to invite the enmity of his neighbour or any other person for no reasons and also people are too busy to spend hours/days together in investigation with police and later on before the courts. Hence public persons are extremely reluctant to join the police investigation. Accordingly, I hold that the prosecution has been able to establish to the satisfaction of the court that the recoveries were so effected.
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.33/4546. The CDRs alongwith Cell Tower IDs and CAF were admitted by the defence on 29.11.2016. The relevant details can be presented in the following tabular form:
Phone No. Service Used by Recovered CAF details IMEI No's used Calls Made to co-accused Provider & from, (between 07.07.2011 to Date of 09.07.2011) Issue Exhibit no.
9958390839 Airtel Harender Harender Abdul Furkan 357448032684490 9289907813 (Rajkumar)
Nagar Nagar S/o Abdul on 7.7.11 at
Razak R/o 20.41,20,56,21.03
Ex.PW-26/A 21/80,
Welcome, 9891949444 (Rajkumar)
(Kalandara) on 7.7.11 at 20.23,20.25
Seelampur,
Delhi 8.7.11 at
22.56,22.59,23.01,
(Fake ID used) 23.03,23.08
9953682579 (Deepak) on
8.7.11 at
22.36,22.40,22.43,22.45
9560423283 (Naim Khan)
on 08.07.11 at 23.12
9560423283 Airtel Naim Naim Khan Asha Sharma 355101041425720 9953682579 (Deepak) on
Khan @ W/o 8.711 at 20.38, 21.06,
29.11.09 Gabbar Ex.PW-26/A (Samsung CE 016 21.26, 21.41, 22.02, 22.06,
Ram Prasad Phone) recovered 22.16, 22.29, 22.30,
(Kalandara)
23.01,23.06
R/o A-27B, from Naim Khan
RST Enclave, 9289907813 (Rajkumar)
Johripur Extn., vide Ex.PW-26/A
on 8.711 at 22.51
Delhi
9958390839 (Harender)
(Fake ID used)
on 8.7.11 at 23.12, 23.14,
23.18, 23.27, 23.31
9289907813 TATA Raj Raj Kumar Vijay Kumar TATA CDMA 9958390839 (Harender)
Kumar Gupta R/o G-1/78, Phone recovered on 7.7.11 at
19.3.201 Gupta Sector-16, from Raj Kumar 20.41,20.56,21.03
0 (Ex.PW- Rohini, Delhi vide Ex.PW-5/D
5/D) 9560423283 (Naim
(Father of Khan) on 8.7.11 at
22.51
accused Raj
Kumar 9211662993 (Mukesh
Tiwari) on 8.7.11 at
11.14, 11.38, 17.38,
18.15
9211662993 TATA Mukesh Mukesh Abhijit Malik TATA CDMA phone 9289907813
Tiwari Tiwari vide recovered from (Rajkumar) on 8.7.11
R/o Mukesh Tiwari vide at 11.14, 11.38,17.38,
Ex.PW- H.No.243, Ex.PW-5/C 18.15
5/C Nehru Nagar,
Baljit Nagar,
Delhi
(Fake ID
used)
FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.34/45
9891949444 Idea Raj Raj Kumar Raj Kumar 352089044677350 9958390839 (Harender)
Kumar Gupta S/o Vijay
Gupta Kumar R/o F- (Samsung phone on 7.7.11 at 20.23,
(Ex. PW- 6/208, recovered from Raj 20.25
5/D) Sector-16, Kumar vide
Ex.PW-5/C) 8.7.11 at 22.56, 22.59,
Rohini, Delhi 23.01, 23.03, 23.08
(Self ID of 9211662993 (Mukesh
accused Raj Tiwari)
Kumar)
on 3.7.11, 4.7.11,
5.7.11, 6.7.11 multiple
times
9540901391 Idea Vijay @ Not Chanda S/o 354798044129670 9560423283 (Naim
recovered Shamsher Khan) on 8.7.11 at
19.05.11 Mota R/o A-154, (Not recovered) 22.34
Saleem gali no.6,
Shiv Vihar,
Delhi.
9953682579 Vodafone Deepak Not Radha Jindal 359332032843470 9958390839 (Harender)
on8.7.11 at 22.36,
01.7.11 (Juvenile recovered R/o 71, Azad (Phone not 22.40, 22.43, 22.45
) Enclave, recovered)
Loni, GZB. 9560423283 (Naim
Khan) on 8.711 at
(Mother of 20.38, 21.06, 21.26,
accused 21.41, 22.02, 22.06,
Deepak) 22.16, 22.29, 22.30,
23.01, 23.06
8447545262 Vodafone Aftab Accused is Rakesh R/o 355787048048640 9958390839 (Harender)
Alam @ P.O. E-82, Gali on 8.7.11 at 20.05,
20.1.11 Chhota no.11, (phone not 20.17, 21.26
Saleem Shastri Park, recovered)
Delhi.
47. Perusal of the same would show that the mobile phone make Samsung series-123 double SIM, which was recovered from possession of accused Naeem Khan during his personal search by the Crime Branch staff and contained SIM No.9560423283 on fake ID of one Asha Sharma was used by him to call JCL Deepak, SIM No.9953682579 eleven times on 08.07.2011 (i.e. date of assault), between 8.38 pm to 11.06 pm. Though the mobile phone was not recovered from possession of accused JCL Deepak but it surfaced during investigation that he was using a Vodafone connection (SIM FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.35/45 no.9953682579) in a mobile phone bearing IMEI no.359332032843470. As per the CAF, the SIM was in the name of his mother Smt. Radha Jindal. He disclosed about using the above phone during his PC.
48. Further he called co-accused Rajkumar on 08.07.2011 at 11.51 pm on his mobile number 9289907813. As per the CAF of this number, this SIM was issued on the ID of accused Rajkumar himself and the Samsung make mobile phone in which this SIM was working was recovered from the possession of accused Rajkumar during his personal search at the time of his arrest on 14.07.2011. Accused Naeem Khan had also talked to the expired accused Harender five times on 08.07.2011 between 11.12 pm to 11.31 pm. The Samsung mobile phone wherein the Airtel SIM no.9958390839 was used by accused Harender Nagar was recovered from his possession by the staff of Crime Branch at the time of his personal search and arrest.
He had used a fake ID of one Abdul Furkan to obtain the SIM. This proves that he was in contact with JCL Deepak, expired accused Harender and co-accused Rajkumar.
49. The perusal of CDRs would further reflect that accused Mukesh Tiwari who was using TATA SIM no.9211662993 in the TATA CDMA phone on the fake ID of one Abhijit Malik recovered from his possession during his personal search at the time of his arrest, had used the same to contact co-accused Rajkumar on his mobile on FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.36/45 9289907813 four times on 08.07.2011 between 11.14 am to 6.15 pm. He had also contacted accused Rajkumar Gupta on his other other SIM no.9891949444 multiple times on 3rd, 4th, 5th and 6th July 2011. It is important to note that SIM no.9891949444 was issued at the idea of accused Rajkumar himself and was used by him in Samsung phone recovered during his personal search at the time of his arrest on 14.07.2011. Accused Mukesh Tiwari had also used his above mentioned TATA phone to contact the expired accused Harender on his SIM no. 9958390839 five times on 09.07.2011 between 2.52 am to 4.16 pm. As already noted Harender was using this SIM obtained on fake ID of one Abdul Furkan, in his Samsung make phone recovered during his personal search at the time of his arrest by Crime Branch Staff. Other co-accused were also in touch with accused Rajkumar, Mukesh Tiwari and Naeem Khan as per the CDRs. All this is sufficient to make a reasonable ground for believing the existence of conspiracy amongst the accused persons. The location of accused Rajkumar as per the CDR was that of Khazoori Khas and Usmanpur between 7.56 pm to 11.08 pm i.e. near to the place of incident. The location of expired accused Harender Nagar was of Karol Bagh and New Rohtak Road on 04.07.2011 i.e. near Liberty Cinema and on 08.07.2011 the location of accused Naeem Khan was that of Gopalpur at 8.38 pm on the date of incident Khazoori Khas at 9.41 to 10.16 pm, Wazirabad road from 10.26 to 10.30 pm and Gopalpur again from 11.01 to 11.34 pm and thereafter at Bawana. This is also in tune with disclosure statement of accused FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.37/45 Naeem Khan who stated that on the date of incident he had reached the house of accused Kake from his house and then reached the spot after receiving call of co-accused Deepak after the incident he took the auto of deceased and reached Gopalpur via Wazirabad. Thereafter he called Raju at Main bypass road and went to Rohini along with accused Kake, Vijay and Chota Saleem. Location of co- accused Rajkumar Gupta was also of Khazoori Khas and Usmanpur area between 7.56pm to 11.08 pm. Also as per the CDR of accused Harender Nagar, his location was also of Khazoori Khas (his residence)5th Pushta, New Usmanpur, spot of incident and Gokalpuri on the date of incident. Also four days prior to the incident i.e. 04.07.2011 the location of accused Harender Nagar was traced at New Rohtak road i.e. near Liberty Cinema.
50. The above facts also corroborate the version of the eye witness Kamal Singh. The defence has admitted the FSL result in this matter as per which the AB+ blood was detected on clothes of deceased and also on the gauge with blood lifted from the spot while blood could not be detected on the wooden danda which as per the prosecution case was recovered from the car of accused Rajkumar. Ofcourse this is the circumstance favouring the defence but the mere fact that no blood was detected on the danda does not absolve the accused because it is quiet possible that one of the many blunt weapons of offence may not have any blood stains on it. Ofcourse, the sharp weapon used in assaulting the victim could never be FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.38/45 recovered and as per the disclosure of accused persons the other wooden dandas were also thrown at different places by them as the knife. The recovery of this danda as also of the Honda City car at the instance of accused Rajkumar also stand sufficiently established as there have been no major contradictions pointed out by defence on that aspect and the witnesses of the recovery are sound and reliable and have deposed truthfully.
51. The argument taken by ld. defence counsel that since the documents of auto were not sealed, the recovery of the same is of no value, is not tenable considering that there is no possibility of tampering with the same, which is the very purpose behind sealing of case properties. Accused Harender Nagar, Naeem Khan, Rajkumar Gupta as also accused Mukesh Tiwari were found in possession of mobile phones with SIMs which were used by them to contact each other and remaining accused.
52. Ld. counsel for the accused has argued that the testimony of witness Shyam Kishore Tiwari is not reliable because though he has deposed about a conspiracy amongst the accused persons to eliminate that the deceased, he himself was a suspect initially. Secondly, his first statement was recorded by the IO only on 11.07.2011 i.e. about three days of incident, though the IO had interrogated him on 10.07.2011 itself but he did not mention this fact in his case diary nor he mentioned the details of interrogation of this FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.39/45 witness. Thirdly, this witness did not tell about the conspiracy amongst the accused persons to anyone till 11.07.2011 and this conduct was unnatural. I am unable to accept this contention of defence for the reason that initially IO had infact only generally interrogated the witness in presence of other persons including the family members of the deceased. The detailed statement of the witness was recorded post his interrogation on 11.07.2011 after the IO applied for CDRs of his location and found the witness cooperating with the police. Though the IO has not placed on record the CDRs of witness, which as per him were received in 12.07.2011 from the service provider, he proceeded further in investigation of the matter, on lines of what was stated to him by this witness. The witness Shyam Kishore Tiwari stated during his cross-examination that initially he was not aware how the sequence of events had taken place so he did not mention to anybody about what he had witnessed previously i.e. hathapai between deceased and accused Mukesh Tiwari and Mukesh Tiwari and Raju pointing towards deceased and his auto on some occasions to some co-accused including Harender Nagar. This in my view is an adequate justification for witness having kept quiet for two days after the incident. More so, because the wife of deceased had also expressed her suspicion upon some neighbours of the family with whom the deceased had quarrel one or two days before the assault. Under these circumstances, it would have been immature on part of witness Shyam Kishore Tiwari to speculate anything unless the police had some leads about the case, FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.40/45 which they got after IO met Kamal Singh, the eye witness on 10.07.2011. The defence has further argued that many important aspects of deposition of witness Shyam Kishore Tiwari before the court did not form part of his 161 statements, therefore, he cannot be called to be a reliable witness.
53. I have seen the record and found it correct that some statements were not made by the witness to the police in the same manner as he had deposed before the court. He was also confronted with the same but a collective reading of his 161 statements vis-a-vis his evidence before the court would show that he had substantially deposed in court on lines of his 161 statements but had given greater details and elaborations before court about the incidents witnessed by him, prior to assault on deceased, who happened to be his friend and business partner in black marketing of tickets. It has been observed by Hon'ble Supreme Court in Rammi @ Rameshwar Vs. State of Madhya Pradesh, available on https://Indiankanoon.org decided on 21.09.99, unless the former statement has the potency to discredit the present statement, it would not be helpful to contradict the witness even if the later statement is at variance with the former to some extent. Merely because there is inconsistency in evidence, it is not sufficient to impair the credit of a witness. When an eye witness who is examined and cross-examined in detail makes some discrepancies during his evidence, it is something quite natural and the courts had FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.41/45 to bear in mind that mere variations falling in the narration of incident is an unrealistic approach for judicial scrutiny. Perhaps some untrue witness who is well tutored can successfully make his testimony totally non-discrepant. It has been so held in the landmark judgment of Hon'ble Supreme Court in case of Tahsildar Singh and anr. Vs. State of U.P. AIR 1959 SC 1012. Accordingly, in view of my discussions above, I hold that witness Shyam Kishore Tiwari is not an unreliable witness as urged by the defence counsel. He was rather reliable as well as a natural witness present at Liberty Cinema.
54. Defence has further argued that since CCTV footage was not collected by the IO despite being available at Liberty Cinema, the reliability of witness Shyam Kishore Tiwari would have been strengthened if CCTV footage had shown the same sequence of incidents as was witnessed by Shyam Kishore Tiwari. In this light, it has been submitted that since the witness was deposing falsely, at the instance of IO and the truth would have come out, if the CCTV footage was collected, therefore, IO had deliberately not collected the same. I have already discussed as to why the CCTV footage would not have been much relevant, even if available. Therefore, this argument does not have merits and is rejected.
55. Ld. defence counsel has further argued that prosecution could not prove as to who had inflicted knife blows to the deceased which ultimately resulted in death of deceased. It is correct that FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.42/45 since eye witness Kamal Singh did not identify expired accused Harender Nagar before the court as the assailant, it could not be proved by prosecution as to who was the assailant armed with knife. In this light, ld. counsel has argued that remaining accused persons cannot be held liable for the offence of murder because even if assuming that they had hit the victim, the victim did not die of the blunt injuries suffered by him. This argument cannot hold ground for the reason that the evidence on record including the CDRs of the accused persons has established that there was prior meeting of minds amongst the accused persons and they had acted in furtherance of their common intention to cause serious bodily injuries to the victim and the injuries intended to be inflicted were sufficient in ordinary course of nature to cause death of any healthy person including the victim. Therefore, the principle contained u/s. 34 IPC dealing with vicarious liability comes to be invoked against all the accused persons, even if, the assailant using the knife could not be pin-pointed. It is clear from evidence of eye witness Kamal Singh that one person was definitely armed with knife and it was because of knife that no public person dared intervene in the matter and save the victim.
56. From the facts as discussed above, I hold that the prosecution has been successful in establishing the existence of conspiracy to inflict serious injuries on body of deceased with a view to eliminate him, amongst the accused persons. Also it stands well FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.43/45 established that accused Mukesh Tiwari, witness Shyam Kishore Tiwari as well as deceased were involved in black marketing of cinema tickets and there had been hathapai between deceased and accused Mukesh Tiwari on the issue of sharing of profit, some days prior to assault on the deceased. Deceased had refused to give any share to him and had turned him out of the business. As a result of which he was nursing a grudge against the deceased. It is also borne out from the record that accused Rajkumar had also been working previously as black marketer at the Liberty Cinema but stopped later on when he could not earn profit due to presence of deceased and witness Shyam Kishore Tiwari at Liberty Cinema. Both of them therefore had a motive to kick the deceased out of their way. They were in contact with each other and co-accused Naeem Khan, Harender Nagar @ Kakey and JCL Deepak in pursuance of conspiracy to eliminate the deceased. The recovery of Honda City Car and also the wooden danda therein at the instance of accused Rajkumar and recovery of auto of deceased and its documents at the instance of accused Naeem Khan @ Gabbar also stands established from the evidence.
57. It is also well established that the accused persons were in contact with each other before and after the commission of offence and accused persons Raju & Naeem Khan were also present near the spot of incident on the date and time of assault. It also stands established that the deceased was attacked by 5-6 persons including FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.44/45 the accused Naeem Khan, who inflicted danda blows upon him in furtherance of common intention of all the assailants and in furtherance of criminal conspiracy of all the accused persons, facing trial before this court including the expired accused Harender Nagar @ Kake. It is also established beyond reasonable doubts that the auto of deceased along with its documents was also taken away by accused Naeem Khan with a view to conceal commission of offence and to destroy the evidence. I, therefore, convict the accused persons as follows:
i) Accused Mukesh Tiwari is convicted of the offences u/s. 302 read with section 111 IPC.
ii) Accused Naeem Khan is convicted of offences u/s. 302/34 IPC and also of the offence u/s. 302/111 IPC and of offence u/s.201 IPC.
iii) Accused Rajkumar Gupta @ Raju is convicted of offences u/s.302/34 IPC and also of the offence u/s. 302/111 IPC.Digitally signed by SAVITRI
SAVITRI CHAUDHARY ATTRI
Location: Shahdara
CHAUDHARY District, Karkardooma
Courts, Delhi
ATTRI Date: 2018.08.31 16:20:39
+0530
Announced in the open court (SAVITRI)
today on 23.08.2018 Additional Sessions Judge-03 (Shahdara), Karkardooma Courts, Delhi FIR No.248/11 PSNew Usmanpur State Vs. Naeem Khan & Ors. Page No.45/45