State (Delhi Admn.) vs Som Prakash @ Som Nath @ Somi
1998 Latest Caselaw 894 Del

JUDGMENT

Devinder Gupta, J.

1. This reference has been received from the Court of Shri R.K. Yadav, Additional Sessions Judge, Shahdara, Delhi for confirmation of death sentence. After holding the accused Som Prakash guilty and convicting him for offences punishable under Sections 302 and 307 of the Indian Penal Code (for short " I.P.C.") by judgment of conviction dated 9.3.1998, in addition to death sentence for offence under Section 302, I.P.C., the accused has been sentenced to undergo rigorous imprisonment for 7 years for offence under Section 307, I.P.C. and to pay a fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for six months by order of sentence dated 12.3.1998. Separate appeal has been preferred by the accused Som Nath against the judgment, conviction and sentence.

2. The charge against the accused is that on 9.1.1978 at about 9.30 p.m. at shop No. 4, Parwana Road, Delhi, he along with Jagan Nath, with intention to commit murder intentionally inflicted injuries on Lal Chand and Vasudev, which were sufficient in the ordinary course of nature to cause their death and thereby committed an offence of murder punishable under Section 302 read with Section 34, I.P.C. and in furtherance of common intention, the accused along with Jagan Nath inflicted injuries with sharp edged object on Premwati and thereby committed offences punishable under Section 307 read with Section 34, I.P.C.

3. The version of prosecution on which the accused was charged is that Jagan Nath along with his family comprising of his wife Shanti, daughter Neelam and brother Om Prakash @ Somi @ Som Prakash (the accused) was residing at House No. 15, Brij Puri Extension, Khureji, Delhi. At the back of his house in premises known as shop No. 5, Parwana Road, Khureji, Delhi, Vasudev, a plumber used to reside along with his wife Premwati, daughter Maya Devi and Lal Chand and Vijay Kumar, the brothers of Premwati. On 28.12.1977 Neelam quarreled with her neighbours. Maya Devi witnessed the same and laughed at Neelam, on which Neelam caught hold of Maya Devi and gave beating to her. Premwati intervened and gave beating to Neelam. Jagan Nath and Vasudev also joined. Vasudev is alleged to have given beating to Jagan Nath, as a result of which Jagan Nath fell down and got fracture in left hand. Vasudev is also stated to have received injuries. Both of them were allegedly removed to hospital. With this incident as the alleged motive, the prosecution case was that on 9.1.1978 Vasudev, Prernwati, Lal Chand and Vijay Kumar had gone to sleep inside shop No. 4, Parwana Road, Khureji, Delhi after closing the shutter. Abruptly there was a knock on the shutter at about 9.30 p.m. Premwati is stated to have enquired about the identity of the person knocking outside. Reply came that a hand pump was to be installed to which Premwati retorted that it was not the time for the work. However, the person knocking is reported to have said that address, the place at which the hand pump is to be installed, be noted.

4. On this the prosecution case is that Premwati lighted a lamp, opened the shutter and noticed Jagan Nath and the accused standing near the shutter with two other associates. The accused is alleged to have stabbed Premwati in chest with a kirpan. She started running towards Parwana Road raising an alarm "Bachaoo Bachaoo". Jagan Nath exhorted the accused to finish all those inside the shop. When Lal Chand came near the shutter, on hearing the alarm of Premwati, he too was stabbed by the accused with the kirpan. Lal Chand cried "Mar Diya Mar Diya" and fell down. When Vasudev came, the accused inflicted stab blows to him number of times and he also fell down near the shutter. On hearing noise many people of the locality are alleged to have assembled. One Swadesh Prakash informed the police control room. On receipt of information S.I. Amar Singh reached the spot and sent the injured to J.P.N. Hospital. He along with Constable Satbir Singh stayed back at the spot. S.I. Badlu Ram along with Constable Dalu Ram, who were on patrol duty also reached the spot.

5. Statement Ext.P.W.3/A of Vijay Kumar was recorded by P.W.3 S.I. Badlu Ram in hospital on which endorsement Ext.P.W.3/B was made and the same was sent to police station, which is the foundation of Ext.P.W.3/C F.I.R. No. 44/78 for offence under Section 307, I.P.C. Lal Chand was declared brought dead at 10.30 p.m. Investigation was thereafter taken over by P.W.2 S.I. Bhagwant Singh, who prepared inquest report Ext. P.W. 1/B and sent the body of Lal Chand for post mortem with application Ext. P.W. I/A. On 11.1.1978 Vasudev also expired in hospital at about 10.30 p.m. His inquest report is Ext.P.W.1/E. Statement of Premwati was also recorded by S.I. Bhagwant Singh. During investigation Jagan Nath was arrested on 12.1.1978. Efforts were made to apprehend the accused. He could not be apprehended or arrested. As such on conclusion of investigation challan was presented by sending Jagan Nath accused to trial mentioning the name of the appellant in column No. 2 in red ink, in the report submitted under Section 173 of the Criminal Procedure Code.

6. Jagan Nath was committed for trial to the Court of Sessions on 31.3.1978. By judgment dated 31.5.1979 (Sessions Case No. 7/97), Shri V.B. Bansal, the then Additional Sessions Judge, acquitted accused Jagan Nath of the offence under Sections 302/307 read with Section 34, I.P.C. Appeal against acquittal filed by the State was dismissed on 31.3.1995 by a Division Bench of this Court. The judgment is reported as State (Delhi Administration) v. Jagan Nath, (1995) II Apex Decision (Delhi) 30.

7. Accused Som Parkash was arrested on 4.9.1996. On 18.10.1996 supplementary challan was presented. On 4.12.1996 the Metropolitan Magistrate committed him to the Court of Sessions. On 10.3.1997 he was charged for the aforementioned offence under Sections 302/307 read with Section 34, I.P.C. for which he was tried and by the impugned judgment was convicted and sentenced.

8. We heard learned Counsel for the parties and have been taken through the entire record.

9. During the trial prosecution examined 18 witnesses. P.W.1 K.V.Sambarshiv Rao, Additional Director, C.F.S.L (CBI) Delhi; P.W. 2 Inspector Bhagwant Singh; P.W.3 Badlu Ram, S.I. Police Post Shakar Pur; P.W. 4 Mohinder Singh, the then Mohrar, Malkhana, Police Station Gandhi Nagar; P.W. 5 R.K.Bhatnagar, the then Assistant Director, (Serology) cum-Asstt. Chemical Examiner to the Government of India, CFSL, New Delhi; P.W.6 H.C.Sansar Singh, who was posted at Police Post Shakur Pur on 9.1.1978; P.W.7 Narain Dutt, Daily Diary Writer at Police Post Krishna Nagar; P.W.8 Constable Devi Saran from Police Control Room, Delhi; P.W.9 Constable Karam Singh, then posted at Police Post Shakar Pur; P.W.10 Davender Singh, an associate of S.I.Badlu Ram; P.W.11 Tasveer Singh, Head Constable posted at Police Station Krishna Nagar; P.W.12 Rajinder Singh, Duty Officer at Police Station, Gandhi Nagar; P.W.13 Mohan Singh, S.I. Police Station Gandhi Nagar; P.W.14 S.I. Amir Singh of Police Post Krishna Nagar; P.W.16Sunder Lal son of Chuni Lal, the brother of Premwati; P.W.16 Dr.Bishnu Kumar, who conducted the post mortem on the body of Lal Chand; P.W.17 G.S.Sharma, S.I. Police Station Gandhi Nagar and P.W.18 Hardayal, Record Clerk, J.P.N.Hospital. Vijay Kumar, on whose statement F.I.R. was registered along with Premwati and Maya Devi, all of whom were stated to be the eye witnesses were not examined during the trial of the accused. Their statements were tendered in evidence as Ex.DA, Ex.DB., and Ex.DC.

10. The foremost question urged and agitated during the course of arguments was about the admissibility of the statements Ex.DA, Ex.DB and Ex.DC, stated to have been recorded under Section 299, Cr.P.C. during the trial of Jagan Nath. Learned Counsel for the accused urged that the prosecution miserably failed to lay a proper foundation for receipt of the evidence of the three eye witnesses, recorded during the trial of Jagan Nath, in the absence of which their statements (Ex.DA, Ex.DB and Ex.DC) are inadmissible in evidence. The judgment of conviction is based on appreciation of the inadmissible evidence. In case statements Ex.DA, EX.DB and Ex.DC are held to be inadmissible in evidence, there is absolutely no evidence of guilt against the accused.

11. Learned Counsel for the State frankly and rightly so conceded that in case the documents Ex.DA, Ex,DB and Ex.DC, the copies of the statements of Maya Devi, Premwati and Vijay Kumar are held to be inadmissible in evidence, there is no material on record against the accused and the conviction cannot be upheld.

12. In view of the aforementioned point arising for consideration, we now proceed to examine the question that whether pre-requisites of Section 299, Cr.P.C. have been complied with or not. Section 299 of the Code reads:

"299. (1) It is proved that an accused has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent 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.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India."

13. 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 witness(s) examined. The pre-requisite for recording evidence is 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, 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 precedent for the same are four in number, namely; (a) if the witness is dead or (b) incapable of giving evidence; or (c) cannot be found; or (d) his presence cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable.

14. Admittedly, the challan, presented in March, 1978 was only against Jagan Nath and for his trial only. In this report submitted to the Court under Section 173, Cr.P.C., the name of Som Parkash was mentioned in column 2 in red ink. After Jagan Nath had been committed to the Court of sessions, the Additional Public Prosecutor on 11.5.1978 brought to the notice of the Court that proclamation declaring the accused as proclaimed offender is not available on the file. He prayed for an adjournment so that the facts be got verified. On 7.6.1978 the Additional Sessions Judge recorded that the accused had been shown as Proclaimed Offender in column 2 of the report under Section 173, Cr.P.C. and there had been no proper proclamation against him, on account of which proceedings under Section 299 of the Code cannot be taken against him. In these circumstances, fresh proclamation was directed to be issued requiring Om Parkash to appear within 30 days of the date of proclamation. The order dated 26.8.1978 records that Om Prakash was not present inspite of proclamation. On 19.9.1978 statement of Constable Mahavir Singh, who is alleged to have affixed the proclamation on the residential address of the appellant was examined and on the same day the following order was passed by the Additional Sessions Judge:

"Om Prakash accused is not present inspite of proclamation under Section 82, Cr.P.C. He has absconded and there is no immediate prospects of his being arrested. In these circumstances, Om Prakash is declared as P.O. Now-evidence would be recorded against hennas provided Under Section 299, Cr.P.C.

Dt.19.9.78 Sd/A.SJ."

15. Needless to add that the appellant Om Parkash @ Som Prakash was not an accused. He had not been sent for trial. It was stated in the report under Section 173, Cr.P.C., that he was a person, who could not be apprehended during investigation. It is a moot point that in these circumstances whether the accused could have been declared as proclaimed offender without going into that question that whether declaring him as proclaimed offender was correct or not, the fact of matter is that on 19.9.1978, rightly or wrongly the Additional Sessions Judge, on the basis of the material placed before him felt satisfied that Om Parkash, who was an accused had absconded and there was no immediate prospect of arresting him. As such, the request of the prosecution was considered and it was directed that the evidence against the accused would be recorded under Section 299, Cr.P.C.

16. We will also not go into the question that whether or not the material available before the learned Additional Sessions Judge was or was not sufficient to enable him to have formed an opinion and clothe him with jurisdiction to record evidence in the absence of the accused in these proceedings. We will proceed on the assumption that an opinion was rightly formed during the trial of Jagan Nath that the appellant herein was absconding and there was no immediate prospect of arresting him. Therefore, we will also assume that in so far as the first part of Section 299 of the Code is concerned, the same stood satisfied and the statements of Maya Devi, Premwati and Vijay Kumar were rightly recorded in the absence of the appellant in the circumstances then prevailing.

17. The question, which still remains to be determined is about the second part that whether or not the Trial Court was justified in permitting the said statements, recorded in the absence of the accused to be used against him in his trial. For this purpose, learned Counsel for the State drew our attention to the statement of P. W.13 Mohan Singh that Maya Devi, Premwati and Vijay Kumar were not traceable at the given address. Despite efforts he could not get their whereabouts. He proved his reports Ext.P.W.12/E, Ext.l2/F and Ext.P.W.12/G on the notices issued to Vijay Kumar, Premwati and Maya Devi respectively dated 19.8.1997, which were made by him on the basis of statement of one Baldev Raj recorded on 19.8.1997 that he had been residing at the given address for the last about 40 years. Premwati wife of Vasudev used to reside in the said house along with her family previously, who la ter on went away after vacating the house. Baldev Raj also stated that he was not aware of the place to which they had left. As regards Vijay Kumar son of Chuni Lal, he stated that he did not reside in the said house. Baldev Raj was not examined by the prosecution during trial to prove the fact that Premwati, Vijay Kumar and Maya Devi were not residing or were not available at the given address. Reports Ex.PW.12/E, Ex.PW.12/F and Ex.PW.12/G are not witnessed by anyone else. Another important fact, which deserves to be noticed is that the prosecution did examine Sunder Lal son of Chuni Lal as PW.15. He is the brother of Vijay Kumar and Premwati and uncle of Maya Devi. No effort was made to inquire from him the whereabouts of Premwati, Vijay Kumar and Maya Devi or the fact that whether they are not available or cannot be found or their presence cannot be procured without any amount of delay, expense or the like. No other attempt was made by the prosecution to have the notices served on the three witnesses at any other place. SI Mohan Singh in his cross examination admitted that he had not gone to Mohalla Sudhar Samiti to ascertain the availability of the three witnesses. No enquiry was made from any other person about their whereabouts.

18. In the circumstances aforementioned, it cannot be said that the said witnesses were not available or that their presence could not be procured. Burden was on the prosecution to prove the essential and mandatory ingredients of Section 299, Cr.P.C. that the witnesses were either dead or were incapable of giving evidence or cannot be found or that their presence cannot be procured without any amount of delay. With this scanty evidence in the statement of P.W.13 SI Mohan Singh, whose statement was recorded in Court on 22.8.1997 and without making any effort of putting any question to P.W. Sunder Lal, who was examined in Court thereafter on 15.9.1997, we are of the view that the Trial Court was not a tall justified in admitting Exts.DA, DB and DC in evidence. The Trial Court proceeded to place reliance upon the statements of the three eye witnesses by accepting the version of the prosecution that through the testimony of Mohan Singh, prosecution was able to establish that Premwati, Vijay Kumar and Maya Devi, the eye witnesses were not traceable at the given address and that they cannot be produced in Court without undue delay, expense and inconvenience. The Trial Court failed to appreciate the fact that after summons had been handed over to Mohan Singh for service, he made solitary attempt to effect service. By making enquiry from only one witness, who stated that only two ou t of three persons resided in the house and not the third one. Without making any further effort from the locality or even from the brother of Vijay Kumar and Premwati and the uncle of Maya Devi, P.W.12 submitted his report. With this material on record, it can safely be held that the prosecution hardly made any effort to discharge burden, which lay heavily upon it. The Trial Court thus grossly erred in placing reliance on the inadmissible evidence, namely, Ex. DA, Ex. DB and Ex. DC.

19. The Trial Court not only acted with material irregularity in admitting this inadmissible evidence without prosecution having discharged its burden but also fell in grave error by commenting upon the conclusions in the judgment of acquittal delivered on 31.5.1979 by Shri V.B. Bansal, the then Additional Sessions Judge, Delhi, which had been affirmed in appeal by Division Bench of this Court on 31.3.1995. Learned Counsel for the accused had urged before the Trial Court that on the basis of the evidence recorded at the trial of Jagan Nath, finding had been recorded that possibility of the FIR being anti-dated cannot be ruled out. Admittedly, learned Additional Sessions Judge while acquitting Jagan Nath in his judgment recorded that why possibility of the FIR having been anti-dated cannot be ruled out. The said reasonings along with findings were upheld by the Division Bench of this Court in its judgment holding that in the facts and circumstances of the case and keeping in view the discrepancies in the testimony of the various witnesses, particularly the eye witnesses, Premwati, Vijay Kumar and Maya Devi, the possibility of exaggerated account of the actual events, as a result of deliberation and consultation preceding the actual registration of the FIR cannot be ruled out. The Division Bench also observed that the Trial Court had dealt with various discrepancies and contradictions in the testimony of three eye witnesses and had rightly come to the conclusion that it would be unsafe to place reliance upon the same.

20. In the impugned judgment, the Trial Court found fault with the reasonings in the judgment of acquittal of Additional Sessions Judge in the trial of Jagan Nath and concluded that the delay in lodging the F.I.R. nowhere cast a cloud of suspicion and the same is not fatal. This approach of the Trial Court is unwarranted. It was not at all permissible for the Trial Court to have commented upon the judgment recorded earlier, on the same evidence. The Trial Court was not sitting over the judgment of the Court of the then Additional Sessions Judge, more particularly when that judgment had merged in the judgment of this Court. This practice of commenting upon and finding fault with the judgment of a Judge of co-ordinate jurisdiction cannot be appreciated and has to be depricated.

21. We have come to the conclusion that the statements of Premwati, Maya Devi and Vijay Kumar, the three eye witnesses recorded in the trial of Jagan Nath in the absence of the accused are inadmissible in evidence and they were not examined in the trial of the accused, the same could not have been used against the accused. There being no incriminating material on record against the accused in order to bring home the charge against him, the impugned judgment of conviction and sentence cannot be sustained. The same is liable to be set aside.

22. Consequently, the reference is rejected and Cr.A. No. 219/98 is allowed. Accused/appellant is acquitted of the charges and is directed to be set at liberty forthwith unless required in connection with any other case.