Delhi District Court
St. vs . Sita Ram Etc., Fir No. : 35/96, Ps : ... on 17 March, 2012
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS, DELHI
FIR No. : 35/96
Under Section : 302/323/34 IPC & 506 IPC
Police Station : Shahdara, Delhi
Sessions Case No. : 04/2012
Unique I.D. No. : 02402R0381282011
In the matter of :
STATE
Versus
1.SITA RAM (already acquitted vide judgment dtd 28.04.2000) S/o Chandra Shekhar Prasad R/o: A-4/156, Nehru Vihar, Karawal Nagar Road, Delhi.
2. DINESH KUMAR (already acquitted vide judgment dtd 28.04.2000) S/o Ananat Ram R/o: A-5/99, Nehru Vihar, Karawal Nagar Road, Delhi.
3. RAVINDRA SINGH (already acquitted vide judgment dtd 28.04.2000) S/o Mehtab Singh R/o: D-83, Nehru Vihar, Karawal Nagar Road, Delhi.
4. ASHOK KUMAR S/o Anant Ram R/o: A-99/5, Nehru Vihar, Near Bhajanpura, Delhi-94.
5. SANTOSH KUMAR S/o Paras Singh, R/o: A-100, Gali No. 5, Nehru Vihar, Near Bhajanpura, Delhi-94. .....................Accused Persons Date of Institution : 19.01.2012 Date of committal : 16.01.2012 Date of reserving judgment : 12.03.2012 Date of pronouncement : 17.03.2012 JU D G M E N T
1. This supplementary charge-sheet has been filed against accused St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 1 of 19 Ashok Kumar and Santosh Kumar for facing trial for commission of offences u/s 302/323/34 IPC & u/s 506 IPC. A Kalandara u/s 41.1(c) Cr.PC has also been filed against both the accused persons.
2. Earlier, a charge-sheet u/s 302/323/34 IPC & u/s 506 IPC was filed against 3 accused persons namely Sita Ram, Dinesh Kumar and Ravinder Singh. They were charged for offences u/s 302/34, 323/34 & 506(ii)/34 IPC by Sh. Prithvi Raj, the then Ld. ASJ, Delhi, to which they pleaded not guilty and claimed trial and vide judgment dated 28.04.2000, they were acquitted by Sh. Prithvi Raj, the then Ld. ASJ, Delhi. However, in the said charge-sheet, it was mentioned that proceedings u/s 82-83 Cr.PC against other three accused persons namely Ashok Kumar, Shahbaj and Santosh Kumar were in progress and they were shown in column No. 2.
3. The brief facts of the prosecution case are that on 21.01.1996, on receipt of DD No. 8 at PS Shahdara regarding quarrel at Ambedkar College ground, HC Virender Singh alongwith Ct. Nawal Singh reached at the spot where he came to know that injured have already gone to PS Gokalpuri from where they were sent to GTB hospital. HC Virender Singh also reached at the hospital and collected the MLC No. B-242/96 of Arvind Kumar wherein he was declared fit for statement. MLC No. 243/96 of Anurag who was taken to operation theater, was also collected by HC Virender Singh. SI Ramesh Chand also reached at the hospital who recorded the statement of Arvind as under :
"I am residing at A-1/69, Nehru Vihar, Karawal Nagar Road, Delhi, alongwith my family. I am studying at Satyawati College in B.A. Yesterday, on 20.01.1996, I had come alongwith my Nehru Vihar Cricket Team at Ambedkar College boundary DDA Line, Kardampuri to play St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 2 of 19 cricket and our team had played cricket with the team of Sherpur and that team was about to loose the match but in the meantime, they started quarreling and quarrel had taken place between both the teams. Thereafter, matter was resolved and we all left. Yesterday, 4-5 boys of Sherpur team who were residing in Nehru Vihar and were known to me namely Santosh, Shahbaz, Dinesh, Sita Ram, Ashok and Dinesh had quarreled when injury was caused on eye of Dinesh. No complaint was lodged at the police station regarding quarrel. Today, we had come in the same ground to play match between Munga Nagar Team and Chander Nagar Team and while we were fixing the wickets, at about 10 AM, boys of Sherpur team came there and Santosh hit me on my head with a wicket and other boys had surrounded me. In order to save myself, I ran in a direction but in the meantime, Santosh caught hold of Anurag and gave wicket blow on his chest and made him to fall down and Shahbaz gave beatings with fists and kicks. Dinesh, Sita Ram and Ashok gave beatings to Anurag with bat and wicket and they were accompanied with many other boys at that time whom I can identify, if shown to me. Anurag was saved from further beating by the senior boys of other team and above-said assailants ran away from there. I alongwith Anurag went to Police Station Gokalpuri and from there, police official took us to GTB Hospital and got us admitted there. The above-named accused persons had attacked me and my friend Anurag with intent to kill us and while running, they also threatened us to kill. Legal Action be taken against them."
4. On the basis of the above statement of injured Arvind, FIR under St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 3 of 19 Section 307/323/34 IPC was registered and investigation was conducted. At the instance of Arvind, accused Sita Ram and Dinesh were arrested who produced their bats which they had used in the crime. On 22.01.1996, vide DD No. 30, injured Anurag was reported to have expired whose postmortem was got conducted by the police and dead body was handed over to his heirs and offence was converted into u/s 302/34 IPC from section 307/34 IPC. Accused Ravinder was also arrested later on and was identified by the witness. He was asked to join TIP but he refused the same. PO proceedings were conducted against accused Santosh Kumar and Ashok Kumar who were declared Proclaimed Offenders by Sh. Prithvi Raj, the then Ld. ASJ, Delhi, vide order dated 23.03.1998. However, record does not show either the arrest of accused Shahbaz or any PO proceedings having been conducted by I.O., against him and the present supplementary charge-sheet has been filed only against remaining two accused persons namely Ashok Kumar and Santosh Kumar after their arrest.
Both the accused persons namely Ashok Kumar and Santosh Kumar were charged for commission of offences u/s 302/34 IPC, 323/34 IPC, 506(ii)/34 IPC and were also separately charged for commission of offence u/s 174-A IPC having failed to appear in the court pursuant to proclamation u/s 82 Cr.PC issued against them.
5. The prosecution in support of its case examined as many as 9 witnesses.
6. The prosecution examined following material witnesses:-
1) PW-1 Arvind Kumar is the complainant in this case (recalled for his re-examination after the arrest of accused Ashok and Santosh who were earlier declared PO) who has turned hostile St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 4 of 19 and deposed that he does not know as to who had caused the injuries to his friend Anurag and he also does not know about the accused persons who had caused the injuries on his head.
He was cross-examined by Ld. Addl. PP wherein he denied the suggestions given to him.
2) PW-2 Pradeep Sharma is the friend of Jai Kumar (brother of deceased Anurag). On 28.02.1996, he alongwith Jai Kumar apprehended the accused Ravinder and handed him over to the police at PS Karawal Nagar where IO arrested him. He proved the personal search memo Ex. PW-8/A of accused Ravinder. He does not claim to be the witness of incident.
7. The prosecution also examined following witnesses of arrest and investigation :
1) PW- 3 Retired SI R.C. Sharma is the I.O., of the case. He was posted as Incharge of Police Post Jyoti Nagar on 21.01.1996. He proved the DD No. 8 as Ex. PW-9/A. He also proved the MLC Ex.
PW-15/A of injured Anurag and MLC Ex. PW-15/B of injured Arvind. He recorded the statement Ex. PW-19/A of injured Arvind at GTB hospital and endorsed the same vide his endorsement Ex. PW-9/B. He got the FIR registered through Ct. Nawal, prepared the site plan Ex. PW-19/C, arrested the accused Dinesh from his house, proved personal search memo Ex. PW-9/C of accused Dinesh, seized the weapon of offence vide seizure memo Ex. PW-9/D. PW-3 also arrested the accused Sita Ram from his house, proved his personal search memo Ex. PW-9/E, seizure memo Ex. PW-9/F. He also proved DD No. 30 regarding death of injured Anurag in GTB hospital. He proved the inquest papers Ex. PW-19/D, Ex. PW-19/E, Ex. PW-19/F, Ex. PW-19/G and Ex.
St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 5 of 19PW-19/H, prepared by him. He proved the statements Ex. P-2/A and Ex. P-1/A of Ramesh Chand and Brij Kishore regarding identification of dead body of accused Anurag. He seized the sealed envelop sealed with the seal of NKA given to him by the doctor conducting the postmortem vide seizure memo Ex. PW-19/L. He had arrested the accused Ravinder vide memo Ex. PW-8/A and moved the application Ex. PW-19/1 before the court for getting TIP of accused Ravinder who refused to participate in TIP. He collected the TIP Ex. PW-19/K vide his application Ex. PW-19/J. He got prepared the scaled site plan Ex. PW-10/A of the spot. He collected the postmortem report Ex. PW-16/A. He recorded the statements of PWs.
2) PW-4 HC Amar Pal Singh was posted at PS Jama Masjid on 24.11.2011 and on receipt of secret information, he alongwith ASI Dharambir, Ct. Anuj, Ct. Yashpal and Ct. Sunil reached at the Red Light, Mauzpur Chowk and apprehended the accused Ashok and interrogated him who confessed the guilt. PW-4 proved the arrest of accused Ashok u/s 41.1 (c) Cr.PC vide arrest memo Ex. PW-4/A as well as his personal search memo Ex. PW-4/B. PW-4 had also arrested accused Santosh from near Mavi Hospital, Karawal Nagar Road and proved his arrest vide memo Ex. PW-4/C and his personal search memo Ex. PW-4/D. He also proved DD No. 13-A and 15-A regarding their arrival and arrest of accused Ashok and Santosh. He also proved the Kalandaras u/s 41.1(c) Cr.PC, prepared by ASI Dharambir Singh.
3) PW-5 ASI Dharambir is also witness of arrest of accused Ashok and Santosh as he had accompanied the PW-4 HC Amar Pal, Ct. Anuj, Ct. Yashpal and Ct. Sunil for apprehending both these accused persons. He also proved the documents as proved by St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 6 of 19 PW-4.
4) PW-6 Ct. Anuj is also witness of arrest of both the accused persons as he was also a member of raiding party who apprehended both the accused persons. He also proved the documents as proved by PW-4.
5) PW-7 Ct. Sunil Kumar had also joined the raiding party on 24.11.2011 for arrest of both the accused persons. He also proved the arrest of both the accused persons and relevant documents.
6) PW-8 Inspector Rakesh Kumar Sharma was posted as SHO at PS Shahdara on 24.11.2011 and on receipt of information from PS Jama Masjid regarding arrest of accused Santosh and Ashok u/s 41.1 (c) Cr.PC who were PO in this case, produced both the accused before the court by getting moved an application through SI Yug Bandhu and on 16.12.2011, on permission of the court, arrested both the accused persons vide arrest memos Ex. PW-8/A and Ex. PW-8/B and proved their disclosure statements Ex. PW-8/C and Ex. PW-8/D. He identified accused Ashok and Santosh, present in the court.
7) PW-9 SI Yug Bandhu is the witness of arrest of accused Ashok and Santosh on 16.12.2011 from the concerned court of PS Shahdara, Karkardooma Court. He also identified accused Ashok and Santosh, present in the court and proved the documents as have been proved by PW-8.
8. In the statement u/s 313 Cr.PC recorded separately in respect of both the accused persons, incriminating evidence were put to them, wherein they denied the prosecution evidence and claimed that they St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 7 of 19 have been falsely implicated in this case and were lifted by the police from their respective house. They claimed that they did not make any disclosure statement and were asked to sign some papers by the I.O., and they signed the same without going through contents thereof.
9. I have heard submissions from Sh. Deepak Ghai, Ld. Defence counsel and from Sh. Virender Singh Ld. Addl. PP for the State and also gone through the record.
10. The prosecution case is based on the testimony of ocular witnesses namely PW-1 Arivind Kumar and PW-2 Pradeep Sharma. As per prosecution version, deceased Anurag was given beatings by the accused Ashok and Santosh alongwith their associates by bats and wickets as well as by fists and leg blows.
11. On behalf of accused persons, it has been submitted by Ld. Defence counsel that material witnesses have not identified the accused persons and no incriminating evidence has come on record against the accused persons with respect to the alleged offence u/s 302/323/34 IPC or 506/34 IPC. Other three accused persons namely Sita Ram, Dinesh Kumar and Ravinder Singh have already been acquitted vide judgment dated 28.04.2000, passed by Sh. Prithvi Raj, the then Ld. ASJ, Delhi.
12. In order to establish an offence of murder, it is incumbent upon the prosecution to prove following ingredients :-
(1) death of a human being, (2) that it was caused by the accused persons, (3) that the act by which the accused persons caused it was done :-St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 8 of 19
(a) with an intention of causing death, or
(b) with the intention of causing such bodily injury as the accused persons knew to be likely to cause death of the person to whom the harm was caused, or
(c) with the intention of causing injury to the deceased person and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, or
(d) with the knowledge that the act was so imminently dangerous that it must in all probabilities cause death or such bodily injury as is likely to cause death and committed such act without any excuse of causing death or such injury as aforesaid.
13. In order to see whether the above ingredients have been established by the prosecution on record, the facts have to be appreciated. It has to be first seen whether the prosecution has been able to prove on record the death of deceased Anurag.
In this case, two persons namely Anurag and Arvind had sustained injuries. Injured Arvind Kumar has been examined as PW-1 who sustained minor injuries. PW-1 Arvind Kumar deposed that on the date of incident, he was present at play ground opposite Gokalpuri at Ambedkar Ground alongwith his friends to play cricket. At about 08.30/09.00 AM, all of a sudden, he sustained injuries on his head on back side while he was fixing the cricket wickets in the ground due to which blood started oozing out from his head. He could not see the face of person who caused injuries on his head. He does not know by which weapon, unknown person had caused injuries on his head from back side. Thereafter, he went to PS Gokalpuri and when he was coming out from the PS, he saw his friend Anurag in unconscious condition who was brought to PS by some unknown person.
St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 9 of 19Thereafter, he alongwith Anurag was taken to GTB hospital by those unknown persons and they were admitted there. The doctors had given treatment to him and he was discharged from the hospital but his friend Anurag remained admitted in the hospital. PW-1 further deposed that on next morning, he came to know that his friend Anurag had expired in GTB hospital.
PW-15 R.S. Sharma, Record Clerk, GTB Hospital, proved the MLC Ex. PW-15/A bearing No. B-243/96 of Anurag, aged 18 years, male, who was examined on 30.01.1996 at 11.40 AM, by Doctor Hari K. Sharma. As per MLC Ex. PW15/A, injured Anurag had sustained 'blunt' injuries. On 22.01.1996, vide DD No. 30, injured Anurag was reported to have expired. PW-16 Doctor N.K. Aggarwal, on 22.01.1996 had conducted the postmortem on the dead body of deceased Anurag s/o Ramesh Chand. He proved his postmortem report Ex. PW16/A and opined the cause of death "shock as a result of hemorrhage from internal organs of abdomen and chest likely to be produced by blunt force caused by some blunt object which was sufficient to cause death independently and collectively in ordinary course of nature. All the injuries were antemortem in nature".
IO proved the statements Ex. P-2/A and Ex. P-1/A of Ramesh Chand and Brij Kishore regarding identification of dead body of deceased Anurag. From the above discussion, death of Anurag is proved.
14. Now it has to be seen whether the injuries were caused to the deceased Anurag and injured Arvind by the accused persons. PW-1 Arvind Kumar has deposed in the court that he does not remember the date of incident. However, incident occurred in the month of January, 1996 when he was present at play ground opposite Gokulpuri at Ambedkar ground alongwith his friends to play cricket St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 10 of 19 and at about 08.30/09.00 AM, he sustained injuries on his head on back side while he was fixing the cricket wickets in the ground and due to which blood started oozing from his head. He deposed that he could not see the face who caused injuries on his head. He also does not know by which weapon, unknown person had caused injuries on his head from back side. Thereafter, he went to PS Gokulpuri to make the complaint but police officials of PS Gokulpuri sent him to PS Jyoti Nagar as the area where the incident had taken place did not fall in their jurisdiction and when he came out from PS Gokulpuri, he saw his friend Anurag was brought to PS by some unknown persons. Anurag was in unconscious condition. Thereafter, he alongwith Anurag was taken to GTB hospital by those unknown persons who got them admitted in the hospital. The doctor had given him treatment and thereafter, he was discharged but his friend Anurag remained admitted in the hospital. Thereafter, he left the hospital. The family members and parents of Anurag lodged the complaint with PS Jyoti Nagar where he was also called and inquiries were made from him by the police officials who obtained his signatures on some blank papers. He left the PS for his home and on next morning, he came to know that his friend Anurag had expired in GTB hospital. PW-1 further deposed that he does not know about the accused persons who had caused the injuries on his head and he also does not know anything more about this case.
Ld. Addl. PP with permission of the court, cross-examined the PW-1 as he was resiling from the statement made by him to the police. However, in the cross-examination, he disowned the contents of the statement Ex. PW-19/A recorded by the police and subsequently stated that he could not identify any of the accused persons. He went to the extent of denying the suggestion that accused Ashok and Santosh present in the court are well known to him and they were the St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 11 of 19 members of cricket team of Sherpur and they alongwith other accused persons had given beatings to Anurag and caused his death. PW-1 further denied the suggestion that accused Ashok and Santosh had hit the cricket wicket on his head. This witness also denied the suggestion that he has been won over by the accused Ashok and Santosh in order to save them or that he was suppressing the truth and deliberately not identifying them in the court.
The other material witness PW-2 Pradeep Sharma has deposed that he was in junior team and deceased Anurag was in senior team and on 21.01.1996, he alongwith his friends was playing cricket at Gokalpuri Cricket Ground and a quarrel had taken place in between the boys who were playing the cricket in the senior team. He rushed to the spot and saw Anurag lying on the ground in injured condition and assailants had run away from there. The members of the senior team had rescued Anurag from the assailants. Thereafter, Anurag was taken to PS Gokalpuri from where he was taken to GTB hospital and on next day, he came to know that Anurag had expired. On 28.02.1996, he alongwith his friend Jai Kumar (brother of deceased Anurag), were coming towards Bhajanpura on Karawal Nagar Road and at about 08.00 PM, Jai Kumar identified accused Ravinder who was going on the Karawal Nagar Road as one of the assailants who had given beatings to deceased Anurag alongwith other assailants and caused the death of deceased Anurag. PW-2 alongwith Jai Kumar apprehended Ravinder and brought him to Police Post Karawal Nagar where he was arrested by I.O., and his personal search memo Ex. PW-8/A was prepared. PW-2 deposed that he had not seen the incident and he has not deposed anything else.
Remaining witnesses are official witnesses who have conducted the investigation and none of them is eye-witness. Therefore, there is no St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 12 of 19 evidence on record to prove that accused Ashok and Santosh had caused injuries to deceased Anurag which resulted into his death. Material witnesses PW-1 Arvind Kumar and PW-2 Pradeep Sharma have also not identified the accused Ashok and Santosh. PW-1 Arvind Kumar has denied that accused Ashok and Santosh had given beatings to him causing injuries on his person. Accused Ravinder alongwith other two accused namely Sita Ram and Dinesh have already been acquitted vide judgment dated 28.04.2000, passed by Sh. Prithvi Raj, the then Ld. ASJ, Delhi, and therefore, accused Ashok and Santosh are entitled for acquittal for the offence u/s 302/34 IPC. PW-1 Arvind Kumar and PW-2 Pradeep Sharma have also not deposed anything against the accused persons with respect to offence u/s 323 & 506 IPC, as such they are entitled for acquittal for these offences also.
15. However, both the accused namely Ashok and Santosh could not be arrested during investigation. The I.O., had taken NBWs against them from the court of Ld. MM but they could not be arrested. Thereafter, I.O., obtained process u/s 82/83 Cr.PC. Process was issued by Sh. Prithvi Raj, the then Ld. ASJ, Delhi. Challan was filed showing both these accused persons as well as co-accused Shahbaz in column No.
2. However, no orders from the court of Ld. MM declaring them PO and subsequently, statement of SI R.C. Sharma was recorded on 03.01.1998, 16.01.1998 and on 23.03.1998 with respect to the process u/s 82 Cr.PC and 83 Cr.PC having been executed in respect of accused Ashok and Santosh. Relevant reports were also proved by the I.O., and both accused were declared Proclaimed Offender (PO) by Sh. Prithvi Raj, the then Ld. ASJ, Delhi, vide order dated 23.03.1998. Both these accused persons have been arrested subsequently on 24.11.2011 and Kalandaras u/s 41.1(c) Cr.PC were filed.
St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 13 of 1916. Both these accused persons were also charged for the offence u/s 174-A IPC having failed to put appearance pursuant to process u/s 82 Cr.PC, and they were declared PO having flown from justice after commission of alleged offences as mentioned in the charge-sheet u/s 302/323/34 IPC & 506/34 IPC. Both the accused persons had pleaded not guilty and claimed trial to the charge u/s 174-A IPC and prosecution has examined PW-4 HC Amar Pal Singh, PW-5 ASI Dharambir, PW-6 Ct. Anuj and PW-7 Ct. Sunil Kumar to prove the charge for offence u/s 174-A IPC.
PW-4 HC Amar Pal Singh was posted at PS Jama Masjid on 24.11.2011 and on receipt of secret information, he alongwith ASI Dharambir, Ct. Anuj, Ct. Yashpal and Ct. Sunil reached at the Red Light, Mauzpur Chowk and apprehended accused Ashok and interrogated him who confessed the guilt of present case. PW-4 proved the arrest of accused Ashok u/s 41.1 (c) Cr.PC vide arrest memo Ex. PW-4/A as well as personal search memo Ex. PW-4/B. PW-4 had also arrested accused Santosh from near Mavi Hospital, Karawal Nagar Road and proved his arrest vide memo Ex. PW-4/C and personal search memo Ex. PW-4/D. He also proved DD No. 13-A and 15-A regarding their arrival and arrest of accused Ashok and Santosh. He also proved the Kalandaras u/s 41.1(c) Cr.PC, Ex. PW5/A and Ex. PW5/B against accused Ashok and Santosh respectively, prepared by ASI Dharambir Singh.
PW-5 ASI Dharambir is also witness of arrest of accused Ashok and Santosh as he had accompanied the PW-4 HC Amar Pal Singh for apprehending both these accused persons. He also proved the documents Ex. PW4/A, 4/B, 4/C, 4/D and Ex. PW5/A and Ex. PW5/B. PW-6 Ct. Anuj is also witness of arrest of both the accused persons St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 14 of 19 as he was also a member of raiding party who apprehended both the accused persons. He also proved the documents Ex. PW4/A, 4/B, 4/C, 4/D and Ex. PW5/A and Ex. PW5/B. PW-7 Ct. Sunil Kumar had also joined the raiding party on 24.11.2011 for arrest of both the accused persons. He also proved the arrest of both the accused persons and documents Ex. PW4/A, 4/B, 4/C, 4/D and Ex. PW5/A and Ex. PW5/B.
17. Ld. Defence counsel has submitted that no evidence has come against the accused persons for the main offence u/s 302/323/34 and 506/34 IPC. Both the accused persons were shown to have been arrested vide Kalandaras u/s 41.1(c) Cr.PC only on 24.1.2011 but they were arrested from their respective houses and they remained available throughout at the same address and therefore, it cannot be said that both the accused persons have absconded and therefore, they are entitled for acquittal even for the offence u/s 41.1(c) Cr.PC, punishable u/s 174-A IPC for non-appearance in court pursuant to process u/s 82 Cr.PC.
18. However, Ld. Addl PP has submitted that if the accused persons had remained present at the given address, NBWs issued against them should have been executed and they would have joined the investigation. The proceedings u/s 82 Cr.PC would not have been initiated against them and the testimony of police witness fully supports the prosecution case and there is no material contradiction. Accused persons have not adduced any defence evidence even to suggest that they were arrested from their respective residential addresses and therefore, prosecution has proved on record that the accused persons were absconding and failed to appear in the court despite proclamation u/s 82 Cr.PC, as such, ingredients of offence u/s St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 15 of 19 174-A IPC stand proved against both the accused persons namely Ashok Kumar and Santosh Kumar and they are liable to be convicted for the said offence.
19. Perusal of record shows that PW-4 HC Amar Pal Singh, PW-5 ASI Dharambir, PW-6 Ct. Anu and PW-7 Ct. Sunil Kumar, have fully corroborated the fact that both the accused persons namely Ashok Kumar and Santosh Kumar were absconding and process u/s 82 Cr.PC was issued by the court against them. They were arrested by the police and Kalandaras u/s 41.1 (c) were prepared. They have proved on record the documentary evidence and there is no material contradiction in their testimony.
20. Order dated 23.03.1998, passed by Sh. Prithvi Raj, the then Ld. ASJ, Delhi, shows that accused persons could not be arrested during investigation and therefore, process u/s 82 Cr.PC & 83 Cr.PC was issued against accused Ashok and accused Santosh, and after recording statement of SI R.C. Sharma, both these accused persons were declared PO on 23.03.1998. They did not make any effort to appear either in the court of Ld. MM or before Sh. Prithvi Raj, the then Ld. ASJ, Delhi. Arrest Memo Ex. PW4/A shows that accused Ashok Kumar was arrested on 24.11.2011 at 10.45 AM, from near Red Light, Mauzpur Chowk, Delhi, and this arrest memo was signed by Ct. Anuj and Ct. Sunil Kumar besides HC Amar Pal Singh, who made the arrest. Personal Search Memo Ex. PW-4/B was also prepared in the presence of these police officials and HC Amar Pal Singh, Ct. Anuj and Ct. Sunil have also appeared in the court and proved the said documents.
Similarly, accused Santosh Kumar was arrested on 24.11.2011 at 01.30 PM, from near Mavi Hospital, Karawal Nagar Road, Delhi, and St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 16 of 19 this arrest memo Ex. PW-4/C was also signed by the aforesaid police witnesses. His Personal Search Memo Ex. PW-4/D was also prepared in the presence of aforesaid police officials who have proved the said documents in the court.
PW-5 ASI Dharambir Singh has also corroborated the testimony of PW-4 HC Amar Pal Singh, PW-6 Ct. Anuj and PW-7 Ct. Sunil and no witness has been examined by accused persons to even suggest that their arrest was not made by police from the respective place of arrest as claimed by prosecution. Therefore, there appears no reason to disbelieve their testimony. Accordingly, it is held that both these accused persons namely Ashok Kumar and Santosh Kumar have been arrested by the police as PO and therefore, both the accused are held guilty and convicted for commission of offence punishable u/s 174-A IPC. Let the accused be heard on quantum of sentence.
Announced in the open court T.S. KASHYAP
today i.e on 17.03.2012 ASJ-04/NORTH-EAST/DELHI
St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 17 of 19
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS, DELHI FIR No. : 35/96 Under Section : 302/323/34, 506 (ii)/34 IPC & 174-A IPC Police Station : Shahdara, Delhi Sessions Case No. : 04/2012 Unique I.D. No. : 02402R0381282011 STATE VS. ASHOK KUMAR & SANTOSH KUMAR Order on Sentence Vide my separate judgment announced in the open court today, the accused Ashok Kumar and Santosh Kumar have been convicted for commission of offence u/s 174-A IPC.
I have heard the submissions from Ld. Addl. PP as well as from Sh. Deepak Ghai, Advocate for convicts Ashok Kumar and Santosh Kumar. Ld. Defence counsel has submitted that both the convict persons have been acquitted by the court for the charge with respect to the offences u/s 302/34, 323/34 & 506(ii)/34 IPC which were main charge against them. However, they have been convicted for the offence u/s 174-A IPC. It has been submitted that convicts have been acquitted for the main charge as they have not been identified by the eye-witnesses. Both the convicts have suffered punishment by remaining in judicial custody since the date of their arrest i.e. 24.11.2011 and have already suffered much. Both the convicts are married and have their families and are the only bread-winner. Therefore, he prays that they be released from the jail for having suffered punishment for the period already undergone.
Ld. Addl. PP has submited that offence is punishable with St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 18 of 19 imprisonment which may extend to seven years and therefore, in view of the fact that the convicts were put to trial for serious offences, and they remained absconding since the commission of alleged offences till 24.11.2011. Therefore, he has submitted that they be given maximum punishment.
It is not in dispute that both the convicts have been acquitted for the charge of main offences u/s 302/34, 323/34 & 506(ii)/34 IPC. In this case, in all there were 6 persons who were accused for the alleged offences. Three accused namely Sita Ram, Dinesh and Ravinder were already acquitted by Sh. Prithvi Raj, the then Ld. ASJ, Delhi, vide judgment dated 28.04.2000. Both these convicts have also been acquitted of the main charges by this court and have already suffered much by remaining in judicial custody since the date of their arrest and therefore, in my considered view, the interest of justice shall be met if both convicts Ashok Kumar and Santosh Kumar are sentenced for the period already suffered by them since 24.11.2011 till date. They are sentenced accordingly. They be released from jail, if not required in any other case.
Announced in the open court T.S. KASHYAP
today i.e on 17.03.2012 ASJ-04/NORTH-EAST/DELHI
St. Vs. Sita Ram etc., FIR No. : 35/96, PS : Shahdara Page 19 of 19