Delhi High Court
Raj Kumar @ Raju vs State on 28 October, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.MB No. 1214/2010 in Crl.A. No. 1025/2010
% Date of Decision: 28.10.2010
Raj Kumar @ Raju .... Appellant
Through Mr.P.K.Dham, Mr.Tarun Arora and
Mr.Rahul Tandon, Advocates
Versus
State .... Respondent
Through Mr.Jaideep Malik, APP
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA
1. Whether reporters of Local papers may
be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be
reported in the Digest?
ANIL KUMAR, J.
*
This is an application by the applicant under Section-
389(1) of Crl. Procedure Code for suspending his sentence during the
pendency of the appeal and to release him on bail.
The applicant has contended that he is in custody since
16th November, 2004 and he has every chance of succeeding in appeal.
The applicant is stated to be a permanent resident of Delhi and has
roots in the society and there is no chance of his fleeing from justice.
The learned counsel for the applicant has very emphatically
contended that the applicant has been convicted merely on the basis of
the testimony of his six years old son. According to him, the testimony
of his son regarding the applicant strangulating his wife, mother of the
witness is not reliable as he had also admitted in the cross-examination
that the applicant had not strangulated his wife. The other factor to
caste a doubt on the testimonies of PW-7 Master Anubhav is that he
remained with his in-laws for a considerable period after the alleged
incident on 14/15th November, 2004 and his statement was recorded
by the police on 1st February, 2005. Referring to the cross-examination
of PW-2 Inspector Shyam Pant, it is pointed out that no reason has
been given for not recording the statement for such a long period after
the incident in the case diary nor any cogent reason has been disclosed
by the said witness in his deposition recorded on 30th November, 2009.
The relevant portion of statement of PW-7 Master Anubhav
is as under :-
".... I saw that my uncle (chacha) had caught hold of
legs of my mother and my father was strangulating
her. Thereafter, I went to sleep. I was woken up by
my maternal uncle. Accused Prem Kumar present in
the Court is my uncle (chacha) and the other accused
is my father."
In the cross-examination, the child witness had admitted
that he had been living with his maternal grandmother for three to four
years. In his statement to the police Ex. PW-7/DA-3 he had not told
about holding of legs of his mother by his uncle and strangulation by
the father rather he first stated that his uncle was present at the time of
the incident and also admitted that at the time of death of his mother
his uncle was away to Abohar (Punjab). The Trial Court had acquitted
Sh. Prem Kumar, co-accused (chacha) of the accused.
The child witness also categorically stated in his cross-
examination that he had not seen his father strangulating his mother.
His relevant cross-examination is as under:-
"... I had not seen my father strangulating my mother
(objected to)."
The learned additional public prosecutor is unable to
explain as to how in the cross-examination, if the witness had admitted
that he had not seen, the same could be objected to and on what
ground. From the testimony of the witness, it is apparent that the child
witness has given diametrically opposite depositions of the involvement
of his father in the strangulation of his mother.
The leaned counsel for the petitioner has also referred to
the opinion of the doctor about the strangulation of the deceased with
the nylon rope Ex. P1, recovered who was not examined and which was
exhibited as PW-2/22C in the statement of the police inspector.
According to the learned counsel, Ex. PW-22/C could not be proved by
Inspector Pant as the concerned doctor who had made the endorsement
on the post mortem report which is Ex. PW-21/A has not been
examined and PW-22 has not deposed that the opinion endorsed on the
post mortem report was made in his presence or that he is conversant
with the signatures of the person, who had made the endorsement,
except stating that it bears the signatures of Dr. Anil at Point-A.
Though, he denied the suggestion that he had obtained a false report in
Ex. PW-22/C, however, there is no deposition as to how he could
identify the signatures of Dr. Anil and was conversant with the same or
why Dr. Anil who had given the report or any of his colleague could not
be examined.
Perusal of the Nominal Roll of the applicant reveals that he
has already undergone sentence of 5 years 10 months and 29 days as
on 15th October, 2010 and has also earned remission of 1 month 25
days and his conduct in the jail is satisfactory. There are no allegations
of any apprehension of misuse of his liberty if granted to him.
In the totality of facts and circumstances and for the
foregoing reasons it is apparent that there are sufficient reasons to
suspend the sentence of the appellant/applicant considering the offence
and other circumstances, which have been considered herein above.
For the foregoing reasons, the sentence of the appellant is
suspended during the pendency of the present appeal and he be
released on bail on furnishing a personal bond in the sum of
Rs.10,000/- with two sureties of the like amount to the satisfaction of
the trial court.
During the period of suspension, the appellant shall keep
the prosecution informed about any change of his address. The
application is allowed in terms hereof.
A copy of this order be sent to the Jail Superintendent for
compliance.
Dasti.
ANIL KUMAR, J.
S.L.BHAYANA, J.
OCTOBER 28, 2010
„rs‟
