Rakesh @ Raju & Ors. vs State
2018 Latest Caselaw 2559 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       DECIDED ON : APRIL 24, 2018

+                      CRL.A.1059/2017

       RAKESH @ RAJU & ORS.                           ..... Appellants

                       Through :     Mr.Vikas Pahwa, Sr.Advocate, with
                                     Mr.Jatan Singh, Mr.Gujral and
                                     Mr.Karan Khanuja, Advocates.

                            versus
       STATE                                          ..... Respondent

                       Through :     Mr.Ravi Nayak, APP.
                                     Insp.Anish Tyagi, PS Shahbad Dairy.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

Crl.M.B.2052/2017

1. The appellants Rakesh @ Raju (A-1), Raj Kumar (A-2), Deepak @ Deepu @ DK (A-3), Krishan (A-4) and Bhagwan Singh @ Mukesh (A-5) seek suspension of sentence till the disposal of the appeal. Status report is on record.

2. I have heard the learned counsel for the parties and have examined the file. Learned Senior counsel for the appellants urged that the impugned judgment based upon dying declaration of the deceased

cannot be sustained particularly when the trial court did not believe the testimonies of PW-1 (Azad Rathi) and PW-4 (Sunny). The said eye- witnesses were not present at the spot at the time of incident. The victim was not fit to make any statement. So-called statement recorded by PW-24 (ASI Phool Kumar) cannot be believed as it was not certified by the concerned doctor. PW-3 (Arjun), another injured in the incident has not supported the prosecution. So is the testimonies of PW-5 (Rajnish) and PW-6 (Ashok Kumar); they have also not supported the prosecution case. No independent public witness was associated at any stage of investigation. The appellants have remained in custody for sufficient duration. Learned Additional Public Prosecutor has opposed the grant of suspension as allegations proved against the appellants are serious.

3. Undisputedly, the appellants were charged for commission of offences punishable under Section 147; 148 read with Section 149 IPC; 302 read with Section 149 IPC and 323 read with Section 149 IPC. Krishan (A-4) was further charged for commission of offence punishable under Section 27 Arms Act. In order to establish its case, the prosecution examined 27 witnesses in all. PW-1 (Azad Rathi) and PW-4 (Sunny) claimed themselves to be present at the spot at the time of incident. Their testimonies, however, were not believed by the court below and it was observed that their presence at the spot was doubtful. The trial court, however, came to the conclusion that ASI Gurcharan had lodged the FIR after recording the statement of the victim on 26.12.2016. The contents of the victim's statement were taken as dying declaration as the victim Sachin expired on 08.01.2017.

4. The allegations against the appellants are serious and grave whereby they allegedly sharing common object inflicted several injuries on the body of a young boy aged around 18 years when he had gone for a walk nearby after dinner. Despite being shifted to a private hospital on 27.12.2017, he could not survive and finally succumbed to injuries on 08.01.2017. During this period the victim's condition remained critical. The trial court was of the view that the injuries were inflicted by the appellants but they had no intention to kill him. Resultantly, the appellants were held guilty for commission of offence under Section 304 Part-II IPC. This aspect needs to be examined during final disposal of the appeal. Though the trial court did not believe the testimonies of PW-1 (Azad Rathi) and PW-4 (Sunny) and suspected their presence at the spot, again this needs re-appreciation by this Court at the time of final disposal. Both PW-1 (Azad Rathi) and PW-4 (Sunny) have claimed that they were present at the spot and had arrived there on getting information about the beatings given to the victim by the assailants.

5. PW-12 (HC Yogendra) in his testimony disclosed that the victim himself had disclosed his name 'Sachin Rathi'. It can be inferred that the victim was conscious at the time of arrival of the PCR at the spot. PW-18 (Dr.Pawan Kumar Saini), from Surgery Department who medically examined the victim at 2.00 a.m. on 27.12.2016 deposed that the patient was conscious and oriented that time; his vitals were stable. PW-24 (ASI Phool Kumar) also testified that the victim was fit to make statement and his statement (Ex.PW-24/A) was recorded by him. In the cross-examination, he reiterated that the injured was speaking at that

time. At this stage, it cannot be inferred that the victim was not fit to make the statement.

6. The arguments addressed by the appellants' counsel need to be considered at the time of final disposal of the appeal on merits. At this stage, it cannot be said that the impugned order is based upon 'no evidence'.

7. Nominal roll of the appellants reveals that they have remained in custody for short duration. A-1's nominal roll reveals that he has undergone only one year, two months and nineteen days incarceration besides remission for twenty days as on 29.03.2018. A-2's nominal roll reveals similar custody period. It, however, further reflects that A-2 is involved in FIRs No.113/2009 under Section 147/148/149 IPC and FIR No.63/2011 under Sections 341/323/506/34 IPC registered at Police Station Shahbad Dairy. A-3 has undergone the same custody period. He is also involved in FIR No.215/12 under Sections 323/341/380/506/34 IPC registered at Police Station Shahbad Dairy. A- 4's custody period is one year, two months and sixteen days besides remission for twenty days as on 29.03.2018. He is involved in four FIRs bearing No.270/2010, 238/2012, 318/2013 and 63/2011, all registered at Police Station Shahbad Dairy for commission of various offences. A-5's nominal roll reveals that he has undergone only five months and fifteen days incarceration besides remission for two months and five days as on 28.03.2018; he is involved in FIR No.270/10 under Sections 147/148/149/353/332 IPC; FIR No.318/13 under Sections 307/506/34 IPC and FIR No.547/14 under Sections 147/148/149/353/307 IPC registered at Police Station Shahbad Dairy.

8. Apparently, the appellants have no clean antecedents.

9. Considering the gravity of the offences whereby a young boy aged around 18 years was allegedly done to death by inflicting injuries on his body, this Court finds no sufficient reasons at this stage to grant suspension of sentence.

10. The application is dismissed.

11. Observations in the order shall have no impact on merits of the case.

CRL.A.1059/2017 To be listed in due course.

S.P.GARG (JUDGE)

APRIL 24, 2018/sa