Rajesh Singh Adhikari @ Babloo v. The State (NCT of Delhi)

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. 2011:DHC:3894-DB 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 PW[4], 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