Full Text
HIGH COURT OF DELHI
JUDGMENT
RAMESH & ANR. ..... Appellants
Through: Mr. Ashok Kumar Garg and Ms.Kavita Agrawal, Advocates.
Through: Mr. Aashneet Singh, APP for State with SI Ravi Saini, NR-II Crime
Branch AND
MAHESH & ANR. ..... Appellants
Through: Mr. Ashok Kr. Garg, Ms. Kavita Agrawal & Mr. Sanjay Rana, Advocates.
Through: Mr. Hemant Mehla, APP for the State with SI Sukhvinder Singh, P.S. Crime
Branch, NR-II.
1. The present appeal has been preferred by the appellants against the impugned judgment dated 20.10.2003 passed by the learned Additional CRL.A. 741/2003 District &Sessions Judge, Delhi, whereby the appellants along with three other co-accused, were held guilty and convicted under Section 304 part-II IPC read with Section 34 IPC. However, all accused including the present appellants were acquitted of the charges under Section 201 IPC.
2. The challenge in the appeal is also to an order on sentence dated 23.10.2003 passed by the learned Additional District & Sessions Judge, Delhi whereby the appellants were sentenced to undergo rigorous imprisonment of five years along with a fine of Rs.10,000/-.
3. It is the case of the appellants that a fine of Rs.10,000/- imposed on the appellants has already been paid by them.
4. The appeal preferred by the appellants was admitted on 10.11.2003 and a direction was given to requisition the Trial Court Record (TCR) and nominal roll. Since, the TCR was not received, the direction to call for the TCR was reiterated vide order dated 03.12.2003.
5. On 15.01.2004, the sentence of the appellants was suspended and they were released on bail. Thereafter, the matter remained on the ‘Regular Board’. However, the appeal was listed on an office note on 12.05.2009 when this Court noted that as per office report TCR is not traceable. Accordingly, the Registry was directed to trace out the same and submit a report within four weeks from 12.05.2009.
6. Thereafter, the matter was adjourned from time to time and an endeavour was also made to reconstruct the TCR. However, the complete TCR could not be reconstructed.
7. On 02.02.2011, the Court directed to list the matter in the category of ‘Regular Matters’ as per its year of filing.
8. The appellants recently filed an application being Crl.M.A.No.17208/2023 seeking early hearing in the present matter. It was pointed out in the application that this Court vide order dated 28.11.2022 passed in connected appeal i.e. Crl.A.736/2003 titled as “Ramesh Kaushik vs. State of Delhi’, arising out of the same impugned judgment and order, has already acquitted the co-convict, namely, Ramesh Kaushik after recording a finding that TCR could not be reconstructed as the same has been lost.
9. The early hearing was thus, allowed and the matter was heard finally on 31.10.2023.
10. The learned counsel for the appellant invited the attention of the Court to the judgment in Ramesh Kaushik (supra), whereby an appeal preferred by the co-convict against the same impugned judgment of conviction and order on sentence, was allowed observing that complete TCR could not be reconstructed and in order to affirm the conviction of the appellant therein, a perusal of the TCR is an essential element for hearing of the appeal and every appellant has a right to satisfy the appellate court that the material evidence available on record did not justify his conviction and this valuable right cannot be denied to the appellant.
11. The Court noted that a perusal of the impugned judgment shows that the witnesses had turned hostile and the impugned judgment is based upon preponderance of probabilities. Further, the Court also noted that retrial is not in the interest of justice as material documents such as inquiry report of the ACP, final inquiry report of the SDM, seizure memos, post mortem report, FSL/viscera report, inquest report, MLC and depositions of the witnesses are not available.
12. This Court also placed reliance on the decision of the Hon’ble Supreme Court in State of UP vs. Abhay Raj Singh &Anr.: (2004) 4 SCC 6, while allowing the appeal of co-accused Ramesh Kaushik. The relevant extract of the judgment dated 28.11.2023 reads thus:
22. The appeal is disposed of in the aforesaid terms.”
13. Reference may also be had to the recent decision of the Hon’ble Supreme Court in Jitendra Kumar Rode vs. Union of India[1]
14. The position in the present appeal is also same as the trial court record which was not traceable in the case of Ramesh Kaushik (supra) is common to the present appeal.
15. In view of the above, the appeal is allowed and the judgment of conviction dated 20.10.2003 alongwith the order on sentence dated 23.10.2003 passed by the learned Additional Sessions Judge, Delhi in S.C. No.203/2003 arising out of an FIR No.367/2001, PS Malviya Nagar, are set aside.
16. The appeal is disposed of in the above terms.
17. This appeal also arises out of the same impugned judgment dated 20.10.2003 passed by the learned Additional District & Sessions Judge, Delhi, whereby the appellant along with four other co-accused, was held guilty and convicted under Section 304 part-II IPC read with Section 34 IPC and vide order dated 23.10.2003 he was sentenced to undergo rigorous imprisonment of five years along with a fine of Rs.10,000/-. CRL.A.719/2003
18. In this appeal also the position is same as the TCR/material documents, including the depositions of the witnesses, which are not traceable, are common to the present appeal.
19. The appeal is thus, allowed and the judgment of conviction dated 20.10.2003 alongwith the order on sentence dated 23.10.2003 passed by the learned Additional Sessions Judge, Delhi in S.C. No.203/2003 arising out of an FIR No.367/2001, PS Malviya Nagar, are set aside.
20. The appeal is disposed of in the above terms.
VIKAS MAHAJAN, J. JANUARY 03, 2024