Delhi High Court
State vs Muskan @ Seema @ Nepalan & Ors. on 23 August, 2011
Author: G.P. Mittal
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and decision: 23rd August, 2011
+ CRL.L.P. 398/2011
STATE ..... Petitioner
Through : Mr. Sanjay Lao, APP for the State.
Versus
MUSKAN @ SEEMA @ NEPALAN & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? No.
2. To be referred to the Reporter or not? No.
3. Whether the Order should be reported
in the Digest? No.
JUDGMENT
G.P.MITTAL (ORAL)
Crl. M.A.9767/2011 (Under Section 5 of the Limitation Act)
1. There is a delay of nine days in filing the petition. The delay is accordingly condoned
for the reasons as mentioned in the application.
CRL.L.P. 398/2011
2. The State seeks leave to file an appeal against the judgment dated 21.03.2011 in
Sessions Case No.97/08 passed by the learned Additional Sessions Judge (ASJ),
Rohini whereby the Respondents (accused) were acquitted for the offences for which
they were charged i.e. under Section 302/201/34 of the Indian Penal Code (IPC).
3. The accused were sent to the Court to face trial on the allegations that on 15.07.2008
deceased Narender Pal @ Lily was working as a driver in tempo bearing No.HR-18-
GA-0118 owned by one Ajmer Singh. On 15.07.2008 Narender Pal Singh was
present at Kundli Border. He purchased some liquor. There was a Nepali girl i.e. the
accused Muskan and the other co-accused in his company. At about 09:45 p.m., the
deceased called up Bijender (PW-10) on his mobile phone number 9315895954 and
invited him for drinks and the lady's company. It is alleged that Bijender did not
show any interest. According to the prosecution, PW-16 Rajpal happened to pass
through Mansa Devi Mandir, Kundli Border and saw the deceased in the company of
Muskan @ Seema @ Nepalan, Ramu Tiwari, Ram Manohar and Arvind Pathak. It is
alleged that the deceased even disclosed the names of the accused to him.
4. On 16.07.2008 DD No.16-A was recorded in the Police Station regarding the
presence of a dead body in Tempo bearing No. HR-18-GA-0118. One plastic rope
was found near the dead body and its face was disfigured. A blood stained iron rod
lay near the dead body. ASI Karan Singh inspected the spot and sent rukka to the
Police Station on the basis of which FIR No.330/2008 was registered in PS Narela.
5. In the course of investigation, one blood stained Chunni Ex.P-3 was recovered at the
instance of accused Muskan and blood stained dhoti and Kurta Ex.P-1 and P-2 were
recovered at the instance of accused Ramu Tiwari.
6. After completion of the investigation, a report under Section 173 Cr.P.C. was filed
against the accused.
7. In order to bring home the guilt of the accused, the prosecution examined 20
witnesses. The deceased's homicidal death was duly proved from PW-9 Dr.
Kulbhushan Goel's testimony. The same is not even in dispute.
8. There is no eye witness to the occurrence. The case rests only on circumstantial
evidence. Primarily there were two witnesses to connect the accused with the offence
i.e. PW-10 Bijender and PW-16 Rajpal. PW-10 had deposed that on 15.07.2008 at
about 9:45 P.M. the deceased had called up Bijender from his mobile phone number
9315895954 and invited him (Bijender) to Kundli Border to enjoy wine and woman.
PW-10 supported the prosecution version about having received a telephone call
from the deceased. Yet, he did not state (and could not have deposed) as to who was
the girl in the deceased's company, since the particulars either of the girl or of any
accused were disclosed by Bijender. Thus, PW-10's testimony was too innocuous to
connect the accused with the offence with which they had been charged.
9. Then there was Raj Pal's (PW-16) testimony which was quite crucial. According to
the prosecution, he saw the deceased in the company of the accused Muskan, Ramu
Tiwari, Ram Manohar and Arvind Pathak on 15.07.2008 at about 9:15 p.m. in
Tempo No.HR-18-GA-0118. PW-16 deposed that while he was proceeding to his
village Dipalpur from Narela in Tempo bearing No.HR-39-6048 and when reached
Singhu Border, he noticed Tempo No. HR-18-GA-0118, owned by Ajmer Singh
(PW-2). He testified that the deceased was sitting in the tempo along with four
accused mentioned earlier. PW-16 also claimed that he enquired about the persons
in the tempo and he (the deceased) disclosed their names as Muskan, Ramu Tiwari,
Ram Manohar and Arvind Pathak. No information about this important aspect was
given by PW-16 to the police. PW-16 claimed that on the next day he went out of
station and when he returned, he came to know about deceased's murder. He,
therefore informed PW-2 Ajmer Sigh about having seen the deceased in the
accused's company on 15.07.2008 at 9:15 P.M. The Trial Court rejected PW-16's
testimony on the ground that though he claimed to have disclosed these facts to PW-
2 Ajmer Singh, yet the latter did not testify about the same. The Trial Court opined
that although PW-16 claimed (in the cross-examination) to have gone to the Police
Station on 28-29.07.2008 to disclose these facts, yet, Rajpal's statement under
Section 161 Cr.P.C. was recorded only on 25.10.2008 i.e. more than three months
after the incident. This, according to the Trial Court, was fatal to the prosecution and
made PW-16's testimony incredible and unworthy of reliance.
10. There was another piece of evidence relied upon by the prosecution i.e. the recovery
of blood stained Chunni Ex.P-3 at accused Muskan's instance and blood stained
clothes i.e. Dhoti and Kurta Ex.P-1 and P-2 at the accused Ramu Tiwari's instance.
These recoveries were held to be inconsequential as no human blood was detected on
any of the articles so as to connect the accused with the commission of the offence.
11. It is settled law that the High Court interferes in an order of acquittal only when there
are substantial and compelling reasons i.e. either there is gross mis-appreciation of
facts or gross mis-application of law, which is not the case here.
12. In our view, the conclusion reached by the Trial Court is reasonable and well
founded. We do not find any ground to interfere in the same. For these reasons the
petition has to fail; Criminal leave petition No.398/2011 is accordingly dismissed.
G. P. MITTAL
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
AUGUST 23, 2011
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