Delhi High Court
State vs Rajiv Alias Raju on 1 November, 2013
Author: Gita Mittal
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.L.P. No.586/2012 Crl.M. No.20039/2012
% Date of decision: 1st November, 2013
STATE ..... Petitioner
Through : Mr.Saleem Ahmed, ASC with Ms.Charu
Dalal, Adv.
Versus
RAJIV ALIAS RAJU ..... Respondent
Through : Ms.Kamini Vohra, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE V.K. SHALI
GITA MITTAL, J (ORAL)
Crl.M.No.20039/2012
1. Heard. For the reasons stated, delay in filing the appeal is condoned.
This application is allowed.
Crl.L.P. No.586/2012
2. By way of the present petition filed under Section 378(1) of the Code of
Criminal Procedure (Cr.P.C.), the State seeks leave to appeal against the
judgment dated 27th March, 2012 whereby the respondent was acquitted of
the charges framed against him under Sections 302/307/34 and convicted only
for the commission of offence under Section 324/34 IPC in the case arising out
of FIR No.86/2004, Police Station Kotla Mubarakpur.
3. With regard to an incident dated 25th February, 2004, FIR No.86 of 2004
was registered against six persons -five brothers namely Sanjeev alias Sonu;
Birender @ Boya; Yad Ram; Babloo; Rajiv @ Raju and their sister Manju. The
State filed a charge-sheet against all these persons. The respondent herein
was admitted to bail on 24th May, 2005 while the trial was underway.
However, he absconded thereafter at the stage of recording of his statement
under Section 313 of the Cr.P.C. The trial court passed an order dated 22nd
December, 2008 declaring the respondent as a proclaimed offender.
4. So far as the other co-accused were concerned, the trial was completed
against accused Yad Ram; Babloo; Sanjeev @ Sonu, Birender @ Boya and
Manju wife of Yad Ram. After considering the evidence which was led by the
prosecution; the defence evidence and hearing the submissions of the parties,
the trial court by order dated 28th May, 2010 convicted Yad Ram and Babloo
under Section 302/34 IPC and acquitted them for commission of offences
under Section 307/34 IPC. Virender @ Boya and Sanjeev @ Sonu though
convicted under Section 307/34 IPC, stand acquitted for offences under
Section 302/34 IPC. Co-accused Manju (who is the wife of Yad Ram and sister
of the other appellants) stood acquitted for all the charges for which she was
tried.
5. It is noteworthy that the other brothers of the respondent herein
namely Sanjeev alias Sonu & Birender alias Boya; filed Crl.Appeal
No.897/2010. Yad Ram & Babloo filed Criminal Appeal No.900/2010.
6. During the course of hearing of these appeals, the factum of
abscondance of Rajiv @ Raju was brought to the notice of this Court. An order
was consequently passed by this court on 12th January, 2012, directing Sh. Hari
Chand (who had stood surety for Rajiv @ Raju) who was present in the court to
ascertain the whereabouts of Rajiv @ Raju. The surety was also directed to
produce Rajiv @ Raju.
7. Pursuant to the order passed on 12th January, 2013, Rajiv @ Raju was
rearrested on 25th February, 2013. He was thereafter produced before this
court and by an order dated 28th February, 2012 directed to be produced
before the concerned trial court on 2nd March, 2012.
8. After production before the trial court, Rajiv @ Raju stood trial from the
stage of recording of his statement under Section 313 of the Cr.P.C. at which
stage he had absconded. The charge was also amended under Section 302/34
and 307/34 IPC by the trial court on 3rd March, 2012. The trial court
considered the evidence on record and heard the arguments of the learned
counsel appearing for Rajiv @ Raju. By a judgment dated 27th March, 2012,
the trial court held Rajiv @ Raju not guilty for offences under Sections 302/34
and 307/34 IPC and acquitted him for the same. However, the trial court held
him guilty for commission of an offence under Section 324/34 IPC by the same
judgment and Rajiv @ Raju was awarded a sentence for rigorous imprisonment
of two years and fine of Rs.1,000/- and in default of payment of fine, simple
imprisonment of one month by order of sentence dated 29th March, 2012.
9. It is noteworthy that Rajiv @ Raju assailed the judgment dated 27th
March, 2012 and order of sentence dated 29th March, 2012 by way of
Crl.A.No.487/2012.
10. The judgment dated 28th May, 2010 assailed by way of Crl.Appeal
Nos.897/2010 and 900/2010 as well as the judgment dated 27th March, 2012
challenged by way of Crl.Appeal No.487/2012 were passed on a consideration
of the same evidence in respect of one incident.
11. The above appeals were heard at length and decided by the judgment
dated 24th May, 2013. The findings therein bind the present adjudication. So
far as the case of the prosecution against Rajiv @ Raju (the respondent herein)
is concerned, in the judgment dated 24th May, 2013 in Crl.A. Nos.897/2010;
900/2010 & 487/2012, we had held as follows:-
"112. We therefore hold that the conviction of Sanjeev @
Sonu, Birender @ Boya for commission of an offence under
Section 307/34 of the Indian Penal Code is not sustainable
and is hereby set aside and quashed. They are held guilty
for commission of the offence under Section 324 of the
Indian Penal Code and each of them is held guilty for
commission of offences under Section 324 of the IPC.
The conviction of [email protected] for the commission of
offence under Section 324 of the IPC is unassailable.
113. As discussed above, there is also no evidence of
common intention being nursed by Rajiv @ Raju. His
conviction for commission of offence punishable under
Section 34 of the Indian Penal Code is therefore
unsustainable. However there is sufficient evidence to
support his conviction for commission of offences
punishable under Section 324 of the Indian Penal Code."
12. On the appeal of the present respondent, after a detailed discussion, it
was directed as follows:-
"115. We are further required to modify the judgment
dated 27th March, 2012 finding Rajiv @ Raju guilty of
commission of an offence under Section 324/34 IPC. The
appellant Rajiv @ Raju shall stand convicted for
commission of an offence under Section 324 of the Indian
Penal Code.
116. The challenge to the order of sentence dated 29th
March, 2012 by Rajiv @ Raju is hereby rejected."
13. So far as the present petition seeking leave to appeal against the
judgment dated the 27th of March, 2012 is concerned, we are bound by the
findings returned by us in the judgment dated 24th May, 2013 which would
guide the adjudication herein as well. The present petitioner was duly
represented before us and was heard before pronouncement of the judgment.
The judgment dated 27th March, 2012 finding the respondent guilty of
commission of offence under Section 324/34 IPC stands modified by us in the
judgment dated 24th of May, 2013 and he has been found guilty of commission
of the offence under Section 324 of the IPC.
14. In this background, the present petition seeking leave to appeal has to
be rejected.
It is ordered accordingly.
(GITA MITTAL)
JUDGE
(V.K. SHALI)
JUDGE
NOVEMBER 01, 2013
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