Delhi District Court
State vs . Shivpal @ Pappu Etc. Sc No. 40/2012 1/12 on 30 September, 2014
ID No.02403R0105942012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
AND SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 40/2012
Unique ID No.02403R0105942012
FIR No. 20/2003
PS : Badarpur
U/s. 302 r/w 120-B IPC
State
Vs
Shiv Pal @ Pappu
s/o Sh. Ram Chander
r/o RZB 26, Nangali, Sakrawati,
Najafgarh, New Delhi ..........accused no. 1
Dinesh ..........accused no. 2
s/o Sh. Collector Singh
r/ovillage Rui, Post Rui, District Mainpuri,
Tehsil Bhogaon UP .
Instituted on :11th May,2012
Argued on : 30th September, 2014
Announced on : 30th September, 2014
JUDGMENT
1. Accused persons Shiv Pal @ Pappu and Dinesh were arrested in case FIR No. 20/2003, PS Badarpur for the offence punishable u/s 302/120-B IPC. Charges against them in brief is that on the intervening night of 15th/16th January 2003, accused persons alongwith co accused Dharamdev in pursuance of their criminal conspiracy committed murder of Kusum w/o Dharamdev at 1/30, Jaitpur Extension, Badarpur, Delhi. In short, case set up by the prosecution is that On 16th January 2003, at 04:10am, DD no. 25-A was recorded to the effect that "murder of a female had taken place in Jaitpur Extension". On the basis of said information , SI Rahul Sahany reached at the place of occurrence and met Dharamdev. SI Rahul Sahnay recorded his statement. He stated that he was residing with his family at E-1/30, Jaitpur State Vs. Shivpal @ Pappu etc. SC No. 40/2012 1/12 ID No.02403R0105942012 Extension as a tenant for the last four years and his family comprised of his wife Kusum (deceased), two sons aged 4 ½ years and 2 ½ years respectively and was an auto driver by profession and as usual, he left his house on 15th January 2003 at around 06:30pm with his TSR bearing no. DL 1 RC 8645. At about 03:00am on 16th January 2003, he returned and parked TSR in gali. He knocked the door, light was found switched off. He switched on the light and found his elder son Kapil sitting on the cot and wife Kusum was lying on the floor and her mouth was found gagged by a towel cloth. There was a saree and white colour belt tied around her neck. His younger son Amit was lying asleep with his head resting on the body of the victim. Informant called neighbours and some one informed the police. He reported that no article was found missing from the house and it appeared that some unknown person had committed murder of his wife. He pointed out that a black colour foot slipper was lying nearby dead body which did not belong to his family. On the basis of his statement FIR was recorded and on conclusion of investigation, charge sheet was filed.
2. Accused Shiv Pal @ Pappu and Dinesh could not be arrested and were declared Proclaimed offender (PO). During the trial of co accused persons, prosecution had earlier examined 21 witnesses.
3. Earlier, vide order dated 10th December 2010, Learned Predecessor of this Court, acquitted accused Dharamdev after his trial. On 29th March,2012 accused Shivpal @ Pappu was arrested and charge sheeted. After committal of the case to this Court, charges for the offence punishable under section 302 r/w 120-B IPC were framed against accused Shivpal @ Pappu on 23rd May,2012, to which he pleaded not guilty and claimed trial. On 01st September 2012, accused Dinesh was arrested and a supplementary charge sheet was filed on 21st September, 2012. Case was committed State Vs. Shivpal @ Pappu etc. SC No. 40/2012 2/12 ID No.02403R0105942012 to the court of Sessions on 24th September 2012. Vide order dated 24th September 2014, charges for the offence punishable under section 302 r/w 120-B IPC were framed against accused Dinesh.
4. Point which emerge for determination in this case is whether on the intervening night of 16th/17th January 2003, accused Shivpal @ Pappu alongwith co- accused Dinesh and Dharamdev (already acquitted) in furtherance of their common intention entered into a criminal conspiracy to commit murder of Kusum @ Situ w/o Dharamdev conspiracy?
5. To prove charges against the accused Shivpal @ Pappu and Dinesh, prosecution examined ten witnesses who had been examined earlier. Brief outline of these witnesses is as under:
5.1 Balram Yadav (PW-3) deposed that in the year 2003, he knew accused Shivpal @ pappu and Dinesh as they were plying auto rickshaws. PW-3 deposed that he did not know anything about any incident. According to him, in the year 2003, co accused Dharamdev told him that his wife had been murdered by someone and therefore, he required money. PW-3 gave him about Rs. 1500/- or Rs. 1600/-. He did not know anything about murder. PW-3 was cross examined by Learned Addl. PP. He denied the suggestion that on 09th February 2003, Dharamdev had come to him and started weeping or on asking the reason of his weeping by him, he told him that he had committed a gross mistaken. PW-3 denied the suggestion that on asking repeatedly, Dharamdev told him that he had committed murder of his wife Kusum with the help of Dinesh and Pappu. PW-3 denied the suggestion that Dharamdev had told him that he had allured Dinesh and Pappu for providing committee money to them. 5.2 Suresh (PW-5) father of Kusum @ Situ (deceased) deposed that in the first month of 2003, he was informed by Dharamdev that Kusum was not well and he State Vs. Shivpal @ Pappu etc. SC No. 40/2012 3/12 ID No.02403R0105942012 was called in Delhi. When he reached alongwith his wife Anguri and others at Badarpur,Jaitpur, he found that his daughter Kusum had died. He identified dead body of his daughter vide statement (Ex. 1/1) and received dead body vide receipt (Ex. 1/2). He placed on record statement (Ex. PW1/DA) recorded by SDM. 5.3 Mahesh Chand (PW-6) was landlord of the house where accused Dinesh was residing as tenant at property number E-1/30, Jaitpur Vistar, Badarpur , New Delhi in the year 2002-2003. He identified accused Shivpal @ Pappu, residing in the same locality. PW-6 deposed that Smt. Situ was residing with her husband Dharamdev as a tenant in his house. In cross examination, he admitted that accused Dinesh alongwith brother of Pappu namely Kripal had come to meet him at Sabzi Mandi, Okhla at about 04:00/05:00 am on 16th January 2003 and informed him that somebody had murdered Smt. Situ. PW-6 admitted that he was informed by them about the incident since he was landlord and at that time, Dinesh had further told him that he was going to inform the sister of accused Dharamdev about the incident.
5.4 SI Madan Meena (PW-1) is witness to arrest memo (Ex. PW1/A) , personal search (Ex. PW1/B) of accused Shivpal @ Pappu. PW-1 is witness to seizure memo (Ex. PW1/C) of TSR. PW-1 placed on record DD no. 24-A (Ex. PW1/D) recorded in PS Begum Pur and kalandara (Ex. PW1/E). SI Rajiv Kumar (PW-2) placed on record DD no. 3-A (Ex. PW2/A). PW-2 has formally arrested accused Shivpal @ Pappu vide arrest memo (Ex. PW2/B) on 05th April 2012 , after moving an application before the concerned Court for his production warrant.
5.5 HC Mange Ram (PW-4) duty officer recorded DD no. 3-A (Ex. PW2/A) on 30th March 2012 regarding arrest of accused Shivpal @ Pappu. Ct. Jaipal Singh (PW-7) accompanied IO/SI Rajiv, who moved application for formal arrest of accused Shivpal @ Pappu on 16th April 2012 in the Court of Duty Magistrate. PW-7 is witness to arrest State Vs. Shivpal @ Pappu etc. SC No. 40/2012 4/12 ID No.02403R0105942012 memo (Ex. PW2/B). Ct. Mahender Singh (PW-8), whose testimony was recorded earlier on 26th July 2004 and adopted by both the parties. There is nothing in his testimony as regards accused Shivpal @ Pappu.
5.6 Inspector Kamal Kishore (PW-9) had formally arrested accused Dinesh vide arrest memo (Ex. PW9/B) and conducted his personal search vide memo (Ex.PW9/C) on 01.09.2012 vide application (Ex. PW9/A). PW-9 prepared supplementary charge sheet on 14th September 2012. He admitted that he had not prepared any disclosure statement of accused Dinesh @ Darvesh. PW-9 admitted that he had also not prepared any pointing out memo and could not find any other material evidence against the accused during his investigation. Inspector Mahender Singh Punia (PW-10) investigating officer took over investigation from SI Rahul Sahni.
6. On 05th September 2014, Learned Defence counsel moved an application stating that he had no objection if Learned Addl. PP for the State was allowed to adopt testimony of Amit Tyagi (PW-3), Ram Niwas Gupta (PW-7) and Sonia (PW-15) , who had been earlier examined in the absence of accused Shivpal @ Pappu and Dinesh. In view of application and statement of Learned Defence counsel, Learned Addl PP for the State closed Prosecution Evidence.
7. The relevant witnesses who had been earlier examined and were relied upon by the prosecution are as under:
7.1 Doctor Manish (PW-17) who was deputed by Medical Superintendent deposed that Dr. Varun Dixit and Dr. Abhijet Ruddra had conducted autopsy on the dead body of Smt. Kusum w/o Dharamdev on 17.01.2003 with alleged history of found dead on 16.01.2003 at her residence. PW-17 identified handwriting and signatures having worked and seen Dr. Varun Dixit signing and writing with course of duties. Cause of death in this case is 'aspyxia' as result of combined effect of gagging and State Vs. Shivpal @ Pappu etc. SC No. 40/2012 5/12 ID No.02403R0105942012 strangulation by ligature which were sufficient to cause death in ordinary course of nature. All the injuries were found to be ante mortem in nature and time since death was about 1 ½ days.
7.2 Laxmi Narain (PW-1) father of Kusum @ Situ. Amit Tyagi (PW-3) Mahesh Chand (PW-4), Balram Yadav (PW-6). Ram Niwas Gupta (PW-7), Smt. Sonia (PW-15) did not know anything about this case. She was cross examined by Learned Addl. PP.
7.3 Ct. Brijbir Singh (PW-2) placed on record photographs (Ex. PW2/1 to Ex.
PW2/8). Ct. Inder Pal (PW-5) is witness to seizure memo (Ex. PW5/A) of envelope containing hair sample of accused Dharamdev. Ct. Mahender Singh (PW-8) is witness to seizure memo (Ex. PW8/A) of eight sealed pullandas with the sample seal of Forensic Science Medicines, AIIMS. Ct. Sanjay Kumar (PW-9) special messenger , took the copies of FIR and delivered the same to senior police officers as well as to Metropolitan Magistrate.
7.4 Ct. Brijesh Kumar (PW-10). Ct. Mohan Singh (PW-11) joined investigation with Inspector M.S. Puniya. HC Vijay Kumar (PW-12) duty officer recorded DD no. 25-A (Ex. PW12/A). Ct. Sanjay (PW-13) special messenger delivered four sealed envelope to Ilaka Magistrate at Patiala House, ACP and DCP . W/ASI Nageshwari (PW-14) duty officer recorded FIR no. 20/2003 u/s 302 IPC (Ex. PW14/A). HC Dharamvir (PW-16) joined investigation with IO. He is witness to disclosure statement (Ex. PW16/A) of accused Dharamdev. Inspector Devender Singh (PW-18) draftsman took rough notes of the place of occurrence and prepared site plan (Ex. PW18/A). R. K. Singh (PW-19) Nodal Officer placed on record call details of mobile phone number 9818050598 (Ex. PW19/A) and location chart (Ex. PW19/B). SI Rahul Sahani (PW-20) is investigating officer, who prepared documents. He placed on record State Vs. Shivpal @ Pappu etc. SC No. 40/2012 6/12 ID No.02403R0105942012 statement of Dharamdev (Ex. PW20/A), rukka (Ex. PW20/B), seizure memo (Ex. PW20/C) ear rings, broken bangles and button of sweater .
8. On conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.PC were recorded. Accused persons pleaded innocence and false implication. Accused Shivpal @ Pappu stated that he had no knowledge of this case as he was never called by the IO to join the investigation. After his arrest, only he came to know about his case, accused Dinesh also stated that after arrest of accused Shivpal @ Pappu, he came to know about the present case and thereafter he surrendered before Ld. Metropolitan Magistrate.
9. I have heard submissions advanced by Sh. Wasi-Ur-Rahman Learned Addl. PP for the State and Sh. M. A. Hashmi Learned Defence counsel for both accused and have perused the record carefully.
10. Learned Addl. PP for the State submits that there is no dispute that material witnesses, who were examined in the Court in the presence of accused person have failed to identify him. It is submitted that their testimony of those witnesses, who are not traceable should be read against accused. It is submitted that accused persons are liable to be convicted u/s 302 r/w 120-B IPC
11. On the other hand, Learned Counsel appearing for accused submits that the testimony of PWs- Amit Tyagi, Ram Niwas Gupta, Sonia recorded in the absence of accused persons cannot be read against them. He argued that accused Shivpal @ Pappu was arrested by the police on 29th March 2012 from PS Begumpur and thereafter, he was produced before concerned Magistrate at Delhi and he remained in the police custody for 55 days. There is no admissible evidence on record against accused Shivpal @ Pappu except disclosure statement of co accused Dharamdev. It is submitted that there is nothing on record to show that the Investigating Officer or State Vs. Shivpal @ Pappu etc. SC No. 40/2012 7/12 ID No.02403R0105942012 any police official had gone to the house of accused persons, before they were declared absconder. Learned Counsel for the accused submits that the accused's right of cross examination is a valuable right and deprivation thereof is only an exception. Learned Defence counsel submits that prosecution witnesses, who have been examined earlier under section 299 Cr.PC is not admissible in evidence against accused persons and same cannot be used against them.
12. Section 299 Cr.PC carves out an exception to the valuable right that without giving him opportunity to cross examine, testimony can be read against him. Legal position is well settled the Section 299 Cr.PC requires strict interpretation and scrupulous compliance and that it is obligatory on the part of the Court to satisfy the pre-requisite facts on the basis of material brought on record by cogent evidence in this regard.
13. In "Som Prakash @ Som Nath @ Somi"1 our Hon'ble High Court observed that Section 299 of the Code is an exception to the general principle that the entire evidence against an accused should be tendered before the Court in his presence. The object and purport of the aforementioned provision is to protect the evidence against the accused, which is not likely to be available at a later stage, in case the accused is not available for trial at an appropriate stage. Section 299 of the Code talks of the two stages. The first of which is up to the point when, in the absence of the accused, evidence is recorded or witnesses are examined. The pre- requisite for recording evidence in the absence of accused are (a) if it is proved that an accused person has absconded; and (b) there is no prospect of arresting him. Only on satisfaction of these two conditions, the Court competent to try or commit for trial, such accused for the offence complained of may, in the absence of the accused, 1 76 (1998) DLT 562 (DB) State Vs. Shivpal @ Pappu etc. SC No. 40/2012 8/12 ID No.02403R0105942012 proceed to examine any witness produced on behalf of the prosecution and record their depositions. Up to this point is the first stage. The evidence so recorded against the accused may or may not be used. It all depends on the subsequent events, namely, apprehension and arrest of the accused and his trial, which is the second stage. Only at the second stage the question of making use of such statement, recorded in the absence of the accused, would arise. On the arrest of the accused, such statements may be read in evidence and used against the accused during his trial for the offence for which he is charged. The conditions precedents for the same are four in number, namely, if the witness is dead or incapable of giving evidence; or cannot be found; or his presence cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable." It is clear from the language of the section 299 Cr.P.C that the Court which record the proceedings under it, must first of all record an order that in its opinion, it has been proved that the accused has absconded and that there is no immediate prospect of his arrest.
14. The word 'absconder' is not defined in the Code of Criminal Procedure. It occurs in other provisions of criminal law e.g. Sections 87 and 90 (a) Cr. P. C and Section 172 IPC. From the context and object of these provisions an 'absconder' may be said to be one who intentionally makes himself inaccessible to the processes of law. Hence, it is not enough if it is shown that it was not possible to trace him soon after the occurrence. It has also to be established that he was available at or about the time of the commission of the alleged offence and ceased to be available after the commission of the offence, before he can be treated as an 'absconder'. Similarly, it has to be established that there is no immediate prospect of arresting the accused. Then, the question arises whether it is enough if the material on record shows that State Vs. Shivpal @ Pappu etc. SC No. 40/2012 9/12 ID No.02403R0105942012 these conditions have been fulfilled or whether it is necessary that the recording court should explicitly state that it has so satisfied itself before the deposition is actually recorded.
15. Hon'ble Supreme Court made it quite clear that in their opinion before recording evidence under Section 299 Cr. PC, Court ought to be satisfied that the accused is absconding and that there is no immediate prospect of his arrest, and it is certainly advisable that he should recite in his order that he finds this to be the case. Magistrate should have clear evidence that the accused were absconding, and evidence from which the Magistrate might reasonably infer that there was no immediate prospect of their arrest. There is no such presumption of aw. An order of that nature must exhibit total application of mind. A judicious approach is imperative. It was held that the Court must bear in mind that an accused has a fundamental right as also a human right. The term 'proved' having been used in the section, providing for an exception to the general rule, was required to be strictly construed. It was not an ipse dixit of the Magistrate that would be sufficient for attracting an extraordinary provision. The Magistrate was required to apply his mind to arrive at a definitive finding on the basis of the material on record, in absence whereof, his order must be held to be arbitrary and, thus, without jurisdiction".
16. In nutshell, the legal position is that two conditions mentioned in the Section 299 Cr.PC of the Code must be read conjunctively and disjunctively . Satisfaction of one of the requirement is not sufficient. It is obligatory on the part of Court to arrive at a finding on the basis of material brought on record by bringing a cogent evidence that the jurisdictional facts existed so as to enable the Court to pass an appropriate order. Since, the law empowers the Court to utilise statement of such persons, whose statements were recorded in the absence of accused as an exception to the normal State Vs. Shivpal @ Pappu etc. SC No. 40/2012 10/12 ID No.02403R0105942012 principals embodied in Section 33 of Indian Evidence Act, inasmuch as , accused has been denied the opportunity to cross examine the witness the witnesses. It is therefore, necessary that principal conditions for utilising such statement during trials must be established and proved like any other fact.
17. In his deposition, Inspector Mahender Singh Punia (PW-10) stated that in the disclosure statement accused Dharamdev had revealed involvement of accused persons. During cross examination, IO/PW-10 admitted that recovery of no incriminating article was effected against or from the accused by him from the place of occurrence. He admitted that apart from the disclosure statement of co accused Dharamdev, no incriminating circumstance had emerged against accused Shivpal and Dinesh and they were made them accused only on the basis of disclosure statement of co accused Dharamdev. PW-10 admitted that none of the prosecution witness had uttered anything against these accused during investigation conducted by him. Sonia (PW-15) deposed that she did not know anything about this case. She was cross examined by Learned Addl. PP and there is nothing in her examination, which could be of any help to prosecution. Amit Tyagi (PW-3) and Ram Niwas Gupta (PW-7) were earlier examined. Admittedly, there is nothing in the testimony of Amit Tyagi (PW-3) and Ram Niwas Gupta (PW-7) against accused Shivpal @ Pappu and Dinesh. On perusal of evidence of prosecution witnesses, this Court finds that no incriminating circumstance has emerged against accused Shivpal @ Pappu and Dinesh. On asking, Learned Addl. PP for the State has not disputed that except disclosure statement of co accused Dharamdev, there is no evidence on record against accused persons.
18. In the result, there being no incriminating evidence on record against the accused persons, I hold that prosecution has failed to prove the charges against the State Vs. Shivpal @ Pappu etc. SC No. 40/2012 11/12 ID No.02403R0105942012 accused person. Resultantly, accused Shivpal @ Pappu and Dinesh are hereby acquitted. As directed accused persons have furnished personal bonds in the sum of Rs.20,000/- with one surety in like amount each u/s 437-A Cr.PC. File be consigned to Record Room.
announced in the
open court on
30th September, 2014 (VINAY KUMAR KHANNA)
Addl. Sessions Judge-04 & Spl. Judge (NDPS)
(South East) Saket/New Delhi
State Vs. Shivpal @ Pappu etc. SC No. 40/2012 12/12
ID No.02403R0105942012
State Vs. Shivpal @ Pappu etc. SC No. 40/2012 13/12