Delhi High Court
Rajesh Singh Adhikari @ Babloo vs The State (Nct Of Delhi) on 3 August, 2011
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.08.2011
+ CRL.A. No. 831/2009
RAJESH SINGH ADHIKARI @ BABLOO ..... Appellant
versus
THE STATE (NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:-
For the Appellant : Mr Bankim K. Kulshreshtha, Mr Vivek Sharma,
Mr Shivanand and Mr Sudhir Kumar
For the Respondent : Ms Richa Kapoor
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL
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?
BADAR DURREZ AHMED, J (ORAL)
1. This appeal on behalf of Rajesh Singh Adhikari @ Babloo has
been filed against the judgment dated 15.09.2009 passed by the
Additional Sessions Judge, Fast Track Court, Patiala House Courts,
New Delhi in Sessions Case No. 12/2008 arising out of FIR No.
238/1997 registered under Section 364-A/368/307/120-B IPC at P.S.
Tuglaq Road. By virtue of the impugned judgment, the appellant
Rajesh Singh Adhikari @ Babloo has been convicted for the offence
punishable under Section 364-A/120-B IPC. As a consequence
thereof, by virtue of the order on the point of sentence dated
22.09.2009, the appellant has been sentenced to undergo
imprisonment for life and to pay a fine of ` 1,000/- and in default of
payment of fine he is required to undergo simple imprisonment for
three months. The benefit of Section 428 Cr.P.C. was given to the
appellant.
2. We may point out that in this case there were initially thirteen
accused as per the charge sheet submitted by the police. Four of the
accused were placed in Column 2 as they could not be arrested at that
stage. Trial had proceeded in respect of the other nine accused, one of
them being the present appellant Rajesh Singh Adhikari @ Babloo.
We find that insofar as the other eight persons are concerned, two
have been acquitted at the appellate stage. Those two are Susheel
Nagar and Jeet Pal. They were acquitted by a judgment of this court
on 11.12.2006. Five others, namely, Dhanvinder Guni, Virender
Singh, Trilok Chand, Brijesh and Leelu were convicted by the trial
court and their appeals were dismissed by the very same judgment
dated 11.12.2006. The remaining person out of the nine, namely,
Arvind @ Arvinder @ Narinder @ Vijay passed away during the
appeal proceedings and consequently his appeal abated. Thus, out of
the nine persons who were tried and convicted, it is only the case of
Rajesh Singh Adhikari @ Babloo, who is the present appellant, which
is left. The present appellant's case got segregated because of the
reason that after his Section 313 Cr.P.C. statement was recorded on
16.05.2001 he had absconded and had been declared as a 'Proclaimed
Offender' on 10.01.2002. Subsequently, he was again arrested on
06.12.2006. It is because of the fact that the appellant had gone
missing and had been declared as a 'Proclaimed Offender' that his
trial had got de-linked from the trial of other eight persons.
3. The issue that we are considering for the present is that after his
arrest in 2006, the trial had proceeded further inasmuch as the
appellant's application under Section 311 Cr.P.C. was allowed and
PW 40 Inspector Ram Mehar Singh was examined afresh. That
happened on 01.05.2009. The evidence that has come against the
appellant in the deposition of PW40 has not been put to the appellant
as no subsequent statement was recorded under Section 313 Cr.P.C.
In fact, we find from the order sheet that the learned Additional
Sessions Judge has specifically mentioned in the order dated
29.05.2009 that no fresh witnesses have been examined and, therefore,
no fresh incriminating evidence has come on record and, therefore,
there is no requirement for recording any additional statement of the
accused Rajesh Singh Adhikari @ Babloo under Section 313 Cr.P.C.
From the order sheet itself, we find that this is not the correct state of
affairs, because, PW 40 Inspector Ram Mehar Singh had been
examined on 01.05.2009 after the appellant's statement under Section
313 Cr.P.C. was recorded on 16.05.2001. The learned Additional
Sessions Judge has failed to notice this fact in the order dated
29.05.2009. He has only referred to PW4, PW37, PW38 and PW39
and has not referred to PW40 Inspector Ram Mehar Singh.
4. In view of the foregoing circumstances, since the incriminating
evidence, particularly, of PW40 Inspector Ram Mehar Singh has not
been put to the appellant, we feel that it is a fit case that the matter be
remanded to the trial court for recording the statement of the appellant
under Section 313 Cr.P.C. We also note that in the judgment dated
11.12.2006 which has been delivered in the cases of other co-accused,
a Division Bench of this court had clearly displayed its dissatisfaction
with the manner in which the statements under Section 313 Cr.P.C.
had been recorded. Consequently, we feel that, since we are
remanding the matter to the trial court for recording of the Section 313
Cr.P.C. statement, it would be better that the entire statement is
recorded afresh and that the Section 313 Cr.P.C. statement recorded
on 16.05.2001 ought not to be read as part of the record.
5. Consequently, we set aside the impugned judgment and order
on sentence and direct the trial court to record the statement of the
appellant under Section 313 Cr.P.C. afresh. The case will thereafter
proceed from that stage onwards in accordance with law. The trial
court record be sent back through Special Messenger to the concerned
court. The matter be fixed before the concerned trial court on
16.08.2011 in the first instance inasmuch as we are informed that the
trial of the co-accused Sanjay Zutshi (who was earlier placed in
column 2 and has since been apprehended) is also listed on that day.
6. The appeal stands disposed of.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
AUGUST 03, 2011
kks
