1. State versus Durga Burman
This case pertained to the alleged seizure of cannabis. The accused was poor and could not engage a private lawyer to defend himself so the court provided him with counsel. He remained in jail for around 20 months during trial. Finally, he was acquitted and released. The accused was unnecessarily detained for a long time because the trial was needlessly delayed as the police took around six months to file the forensic science laboratory report in respect of the cannabis allegedly seized from him. The court took a further 14 months to conclude the trial.
According to the police, on 16 February 2006 Sub-Inspector Ranbir Singh along with Head Constable Dhani Ram, Constable Pradeep and Constable Lal Bahadur were on duty at DFMD, West Passenger Hall Gate, Delhi Railway Station, when at about 2:30pm Durga Burman (44) was seen carrying a white plastic bag on his head. Upon seeing the police, he allegedly turned back, which created suspicion and caused the police party headed by Sub- Inspector Ranbir Singh to chase and apprehend him. The plastic bag was checked and it was allegedly found to contain local cannabis.
The police supposedly requested four to five passersby to assist with the proceedings as witnesses but they all went away without disclosing their names, telling that they had genuine difficulties to do that. The police informed Additional Station House Officer Inspector R S Meena telephonically about the recovery of the cannabis from the accused. They also reportedly gave a notice under section 50 of the Narcotic Substances and Psychotropic Substances Act, 1985 to the accused person and he was apprised of his legal right that he could be searched in the presence of a gazetted officer or a magistrate, if he desired, but he declined and refused to be searched by them too.
At about 3pm Inspector R S Meena also came at the spot along with Constable Sri Ram. A polythene bag allegedly containing cannabis was taken out from the plastic bag. The recovered cannabis was weighed and it came to 30 kilograms, out of which one kilogram was taken out as a sample and was placed in a cloth packet. The remaining cannabis was put back in the polythene and was sealed. The prescribed form for sending the sample to Forensic Science Laboratory was filled out at the spot.
Both packets and the laboratory form and copy of the seizure memo were reportedly handed over to the Additional Station House Officer who left the spot with Constable Sri Ram. The information about the seizure of the cannabis was reduced to writing and the same was sent to the police station for registration of First Information Report (FIR) through Constable Lal Bahadur.
Thereafter Assistant Sub-Inspector Bhoom Singh along with Constable Lal Bahadur came to the spot; he handed over a copy of the FIR, the accused was arrested, and a site plan was prepared and the information was sent to superior officers.
Thus all investigations were completed on the day of arrest, except that the sample of cannabis was sent to the Forensic Science Laboratory on February 28. The charge sheet was ready on March 3; however, it was only filed on March 30, without a report from the Forensic Science Laboratory regarding the contents of the seized material.
The case came up for hearing on 33 dates. Due to the lack of a forensic report, the matter was adjourned until April 10, and again to April 19 when Assistant Sub-Inspector Bhoom Singh appeared and informed the court that the report was still not available. The judge himself wrote to the Director of the Forensic Science Laboratory, Rohini, Delhi to expedite the report as the accused person was in jail. The case was adjourned to April 29, when the forensic report was filed and the court appointed counsel for the accused and adjourned to May 12, when the accused requested a new copy of the charge sheet as his was misplaced and the matter was again adjourned to May 25 when the accused and counsel were supplied fresh copies of the charge sheet and the matter was adjourned to June 2.
Charge was framed on 2 June 2006 and the court ordered the prosecution to lead its evidence on July 31. In order to prove its case, the prosecution examined 11 witnesses out of which Sub- Inspector Ranbir Singh, Constable Pardeep, Head Constable Dhani Ram and Constable Lal Bahadur were witnesses of the alleged recovery of the cannabis and the rest of the witnesses pertained to the investigation.
Witness testimonies were recorded on July 31, August 28, September 26, November 11 and December 5. On the first two dates two witnesses were absent despite having been summonsed; the court issued bailable warrants against both of them. On the second date the witnesses were not cross-examined because the court-appointed defence counsel was absent.
The court fixed 3 January 2007 as the next date for prosecution evidence but on that day no witness appeared. For next two dates, i.e. February 7 and March 17, the judge was on leave. On April 17, examination of witnesses for the prosecution continued and the court appointed a new counsel for the accused as the previous one had been selected for appointment to the judiciary. The case was adjourned to May 2, but as no prosecution witness appeared on that date the matter was adjourned to May 28, when the prosecution evidence was closed and the case adjourned to July 2 for recording the statement of the accused.
In the meantime the judge was transferred and the one who was appointed in his place was not conferred powers under the Narcotic Drugs and Psychotropic Substances Act, 1985, to conduct trial and therefore no proceedings took place on two dates, i.e. on July 2 and 17.
Thereafter, the matter was transferred to the court of a judge who had powers under the Narcotic Drugs and Psychotropic Substances Act, 1985. On 2 August 2007, the judge issued notice to the defence counsel and adjourned the matter to August 17.
On next four occasions, i.e. August 17 and 25, September 3 and 10, the judge did not have time to record the statement of the accused. The matter again came up again on 24 September 2007 but the judge was on leave.
Finally, the statement of the accused was recorded on 8 October 2007. The accused stated that he was innocent and he did not wish to lead evidence in his defence.
The matter was fixed for final arguments on 16 October 2007, however, the judge was busy in some other case, therefore he fixed the case for the next day and the final arguments were heard on October 17.
The court fixed October 22 and then 25 for pronouncement of the judgment but the judge did not have time on those dates.
Finally on 30 October 2007, the court acquitted the accused Durga Burman. The judgment was dictated to the stenographer and taken in short hand, which shows that the judge did not have sufficient time to write the judgment even on that day. After 20 months Durga Burman was allowed to go free.
2. State versus Ravinder Kumar
This is a case relating to causing simple injury by rash and negligent driving. The offence is a bailable offence entailing punishment up to six months and also a fine up to 1000 rupees. There is no minimum mandatory sentence. The offence is cognizable and bailable; therefore, the offender is arrested but released by the police upon furnishing bail bonds. In this case the prosecution did not have any sense of urgency in calling a material witness who was needed to complete the matter, who was apparently expected to wait indefinitely at his given address until some day that the prosecution might call him to give his testimony before the court: an unreasonable expectation in a big metropolis like Delhi.
According to the prosecution, on 3 January 2000 at about 1pm on Palam Road, near Hanuman Mandir, Delhi Cantonment, the accused was allegedly driving a Zen car with registration number UP 16 3067 in a rash and negligent manner endangering human life. He struck one cyclist, namely Babu Lal Shukla, causing simple injuries. Since the alleged act was a cognizable offence under sections 279 and 337 of the Indian Penal Code (IPC), 1890, an FIR was registered and the accused person was arrested and released on his personal bond and a surety bond.
The police filed charge sheet in this case on 22 April 2000. It is significant that the charge sheet was ready on 29 January 2000; though all the evidence annexed with it pertained to the investigation carried out on January 3, and then almost a further three months passed before it was lodged.
The court adjourned the matter to 12 December 2000 for issuing notice to the accused, when he was give notice of the charge and the case was fixed for prosecution evidence on 3 November 2001. On that date the accused filed an application seeking exemption from personal appearance on medical grounds. It was allowed and the case was adjourned to 4 September 2002 for prosecution evidence; however, the court record keeper failed to bring the file before the judge on that day and it was again adjourned to October 5 when the accused again sought exemption on medical grounds and the case was adjourned to 10 January 2003. However, no proceedings took place on that date as the judge was on leave and case was further adjourned to September 5.
The trial began on 5 September 2003, when the first prosecution witness was examined and discharged. The court directed that the injured/complainant be examined on 25 May 2004. However, on that date he was on leave and the matter was adjourned to 8 March 2005, which was declared a holiday; therefore, the matter was taken up on 9 May 2005 and was adjourned without any further evidence being given to 27 July 2006, when the second witness was examined and discharged.
The prosecution then reported that the injured Babu Lal Shukla had left his address. The court ordered that his presence be secured through the investigating officer/Station House Officer/ Deputy Commissioner of Police (South West) and adjourned the case to 18 January 2007, when the judge was on half day’s leave, so the matter was adjourned to 17 October 2007, when the prosecution again reported that the injured/complainant Babu Lal Shukla was not available at the given address. The court said:
In the present case notice U/S 279/337 IPC was framed vide order dt. 12.12.2000 in which accused pleaded not guilty and claimed trial. The prosecution so far examined two witnesses namely PW [Prosecution Witness]-1 Anand and PW-2 retired SI Lakhi Ram, mechanical inspector.
So far both the PWs are formal in nature.
In the present case Babu Lal Shukla was injured/complainant. He was not examined as he could not be served with the summons.
Vide order dt. 27.7.06, PW Babu Lal Shukla was ordered t be served through IO/SHO/DCP-SW. Today the summons sent to PW Babu Lal Shukla received back and it is reported that he has left the given address and his current whereabouts are not known. In the given circumstances, in my considered opinion, no fruitful purpose would be served in further examining the other PWs. I deem it fit to close the PE [Proseuction Evidence]. The PE is closed.
Since nothing incriminating has come on record against accused so far recording of SA [Statement of the Accused] is hereby dispensed with.
Vide my separate order, accused is acquitted.
It is significant that the trial in this case started on 12 December 2000; however, no efforts were made to summon the injured/complainant expeditiously. He was summoned first time for tendering his evidence on 25 May 2005. The prosecution did not make any efforts to trace this witness till 27 July 2006 when it informed the court that the injured/complainant had left his given address. The court issued a summons to trace him; however, there is nothing on record to show that efforts were made to do this except from filing the same old report that he had left the given address. Non-production of this witness caused unnecessary harassment to the accused for more than seven years and resulted in a denial of justice due to the miscarriage caused by the delay.
3. State versus Afsar
The case pertains to the alleged illegal possession of a knife. The offence entails imprisonment that shall not be less than one year but may extend to three years and also imposition of a fine. The proceedings continued for around 11 years, yet there were only two witnesses in the case, neither of who was examined. The accused remained in jail for 24 days before filing of the charge sheet against him, and subsequently he was sent back to jail for a further five days as he failed to appear on the date fixed for trial. However, the police failed to produce witnesses for around 11 years despite the fact that all the witnesses in this case were policemen. Even after that time, the assistant public prosecutor sought opportunity to produce witnesses before the court. However, the court did not allow the same and acquitted the accused.
According to the prosecution, on 30 July 1996 Assistant Sub- Inspector M A Khan and Constable Jai Prakash were on patrolling duty in the area of the New Delhi Railway Station. At around 11:10am, both these policemen reached at platform 10. When they reached the southern side of the platform, they allegedly saw the accused sitting in a suspicious manner. When they approached him, he tried to run away; however, he was caught. The policemen allegedly recovered one switch-operated knife from his possession. The knife was measured and a sketch prepared. Thereafter, it was sealed in a packet and was taken into police possession and a seizure memo recorded. Assistant Sub-Inspector M A Khan reduced the information to writing and Constable Jai Prakash was sent to register the FIR.
The accused was produced before the concerned metropolitan magistrate on the same day and was sent to jail till 13 August 1996 when the investigating officer sought a further 14 days remand on the ground that investigations in the case were not complete. The accused was remanded till August 27 but subsequently granted bail on August 16 and released on August 23 as arrangement of sound surety took some time. Thus, the accused person remained in custody for 24 days at this time.
The police filed a charge sheet against the accused on October 25. It is pertinent to note that all the evidence annexed with the charge sheet bears the date of 30 July1996; therefore, it may be safely assumed that no investigation took place after that date, yet it took about three months to file the charge. The court thereupon ordered that the accused be summoned and fixed 24 April 1997 as the next date of hearing. However, the accused did not appear and the court issued a non-bailable warrant against him and fixed August 18 as the next date of hearing. When the accused appeared voluntarily on that day a copy of the charge sheet was supplied to him and the case was fixed for framing of charge on 21 April 1998, whereupon the accused was again absent. The court issued another non-bailable warrant and adjourned the case to November 5; however, the accused did not appear and had not been arrested. The court again issued a warrant and adjourned to 17 May 1999.
In the meantime, on 6 November 1998 the accused appeared before the court and sought cancellation of the warrant. However, the court sent him to jail till November 20. In response the accused moved a bail application again and it was allowed on November 11, whereupon he was released after five days in jail.
The court framed charges against the accused person on 20 November 1998 and ordered the prosecution to produce witnesses. Thereafter, the case came up for prosecution evidence 14 times, on 22 October 1999; 17 April and 29 August 2000; 24 January, 6 June and 27 November 2001; 11 November 2002; 6 November 2003; 10 August 2004; 15 March and 22 December 2005; 15 May 2006; and 19 March and 6 November 2007. On these dates, the investigating officer was present to give his evidence only thrice but was not examined as the defence counsel was not available once and the judge was on leave twice. On two occasions the court had to issue bailable warrants against the investigating officer to get his presence in the court. The prosecution did not produce witnesses on nine occasions.
Finally on 6 November 2007 the judge decided that enough opportunities had been granted to the prosecution and it had failed to produce a single witness before the court:
I have perused the entire file. Case is pertaining to the year 1996 and charge was framed against accused on 20.11.1998, since no witness has been examined by the prosecution. Even today no witness has appeared for his examination-in-chief. I think sufficient opportunity has been granted to prosecution for PE since then no witness has been examined, therefore, I do not deem it proper to adjourn the matter any further for PE. Accordingly PE is closed.
Since I do not find any incriminating evidence against accused, therefore, statement of accused is hereby dispensed with.
Vide separate judgment of today accused Afsar, S/o. Abdul is acquitted from the charge leveled against him.
The trial took more than 11 years to conclude. There were only two witnesses; both of them were policemen. Neither was examined and the accused person had to suffer 29 days in prison and 11 years on trial.
4. State versus Shahnawaj & Another
This is a case pertaining to wrongful restraint and causing simple injury. The offence entails a punishment of one-year imprisonment and fine up to 1000 rupees for voluntarily causing simple injury, while for wrongful restraint punishment is simple imprisonment of a term that may extend to one month and a fine of up 500 rupees. These proceedings continued for around nine years from the date of incident. The offences were allegedly committed on 5 November 1998. The first date for recording of prosecution evidence fixed by the court was 15 September 2005. During the course of trial only two out of six witnesses cited in the charge sheet were examined. Meantime, the injured/complainant died, not due to the injuries inflicted by the accused persons but of a natural death, before he could be brought in the witness box. It is pertinent that the injured complainant died prior to the start of prosecution evidence being given yet the prosecution neither informed the court of the exact date of death nor was any document confirming his death ever filed in court.
According to the prosecution, one Mohammad Abbas was wrongfully restrained and attacked by two accused at around 9:30pm on 5 November 1998 near his house in the Okhla area of Delhi, causing simple injuries to his face, jaw and other body parts with a sharp-edged weapon, whereupon he had to be hospitalized. Sub-Inspector Sanjeev and Constable Prabhudhan reached the Holy Family Hospital where the injured Mohammad Abbas was admitted. His statement was recorded and a criminal case was registered at the Sri Niwas Puri Police Station, Delhi.
Since both the offences were bailable, upon arrest the accused persons were released on bail on 7 November 1998.
Police filed a charge sheet on 22 April 2000, i.e. around one- and-a-half years after the date of incident. A perusal of the charge sheet shows that it had been finalized on 28 March 1999 but was presented to the court on 22 April 2000. The court registered the case, issued summons to the accused and adjourned the matter to 1 December 2001, i.e. around one year and seven months later, when it was found that the summons issued to the accused persons had not been reported back. The court again issued summons and notice to sureties. The matter was adjourned to 27 February 2003, i.e. around one year three months later.
Both the accused persons appeared before the court on 27 February 2003, and copies of the charge sheet were supplied to them. The matter was adjourned to 22 August 2004, i.e. around one year and six months later, for recording prosecution evidence. This date was declared a holiday, therefore, the matter was taken up on the next day and adjourned to 29 November 2004. However, on this date neither of the accused persons appeared. The court issued non-bailable warrants against them. The case was adjourned to 17 March 2005. Both the accused persons appeared before the court on the next date and the warrants were cancelled.
On 17 March 2005, the court was informed that the complainant/injured had died. The court summoned the complainant’s uncle and fixed March 21 for the purpose. However, the uncle of the injured/complainant did not appear and the matter was adjourned to September 15 for recording prosecution evidence. On this date, i.e. after around five years from the date of incident, testimony of one witness was recorded. On that day, the court was informed that two other witnesses were not available at their given addresses. The court adjourned the matter to 19 April 2006 for the remaining prosecution evidence, but on that date neither did any witness nor did the investigating officer appear. The court directed issuance of bailable warrants against the investigating officer and also directed the Station House Officer at Sri Niwas Puri to verify whether the injured/ complainant had died or not.
On 12 September 2006, a report confirming death of the injured/complainant was placed on record. No witness appeared. The court issued bailable warrants against the witnesses and the matter adjourned to 6 April 2007 and taken up the following day as the date fixed was again declared a holiday. On that day, as before, no witness appeared and the matter was adjourned to 2 November 2007 as the last opportunity, when one witness appeared and testified about examining the x-ray sheets of the injured. No other witness appeared. The court closed the prosecution evidence. Since no incriminating evidence was on record, the court acquitted both the accused persons.
5. State versus Sheikh Jahangir
This case pertains to an alleged rape. The accused remained in jail from 18 July 2006 to 8 October 2007 without any trial. He was granted bail by the court but could not secure it as he was not able to provide surety.
According to the prosecution, on 18 July 2006 at around 4am the accused person Sheikh Jahangir (27) entered the residence of the prosecutrix, namely Sunita Devi, wife of Jeewan Paswan. According to the prosecution, her husband was sleeping outside. It is alleged that after entering, the accused raped the prosecutrix who at first thought him to be her husband but after some time realized that he was not her husband. The prosecutrix called her husband but the accused was able to run away. On the statement of the prosecutrix, the FIR was registered and the accused was arrested.
The charge sheet against the accused was filed on 12 September 2006. It is significant that the evidence filed with charge sheet shows that it was completed on July 27 but it took more than one-and-a-half months for the police to prepare and file it before the court, and even then it did not contain the Forensic Science Laboratory report with details of clothes, swabs, and blood samples obtained during the investigation. The forensic report was completed later, dated 18 December 2006. The application seeking to file the report in the court is dated 9 March 2007 while it was filed on July 2. Therefore, the police took more than six months to file the report in this case.
Meanwhile, on 26 September 2006, the concerned magistrate supplied copies of the charge sheet and directed that the accused be produced before concerned the sessions court on 9 October 2006, when December 12 was fixed for framing of charge against the accused person. On that date a counsel was appointed to defend the accused. The court also framed charges and the case was adjourned to 5 March 2007 for prosecution evidence; however on that day and on the next date of March 9 the judge was on leave.
On 22 May 2007, the prosecution witness who had registered the FIR was present. The additional public prosecutor submitted that he wanted to examine the prosecutrix first; therefore, this witness was discharged and the court directed that the prosecutrix and the investigating officer alone should be summoned on July 2 for recording of their evidence.
On 2 July 2007, the investigating officer informed the court that the prosecutrix was not “traceable at the given address”. She sought further time to produce her, which was allowed, and the case was adjourned to August 8, when the officer told the court that she had been traced to a new locality and further time was needed to find her. The court allowed it but at the same time allowed a bail application of the accused on furnishing a personal bond for 20,000 rupees with one surety of like amount.
The case was adjourned to 12 September 2007 for prosecution evidence. On that date neither the prosecutrix nor the investigating officer appeared. On September 18 it was the same story again and the case was adjourned to October 8 as the last opportunity. The court on that day refused to grant further time and pronounced the judgment:
IO SI Joseph is present. She has filed the report that she has made all efforts to trace out the prosecutrix. It is submitted that for this purpose she had sent Ct. Mahesh. He has recorded statements of witnesses. It is submitted by investigating officer that she has made all possible efforts to trace out the prosecutrix but she has been unable to do so. Ld. APP seeks one more opportunity. However in the present case accused is lying in J/C since 19 July 2006. Many opportunities have been given to trace out the prosecutrix. Despite best efforts made by the investigating officer, the prosecutrix is not traceable. Even the husband of the prosecutrix, who is a material witness, is not traceable. All other witnesses are formal in nature. Therefore I am not inclined to grant any further opportunity to the prosecution. The prosecution evidence is closed by this order. Since there is no evidence against the accused, SA dispensed with. Final arguments heard. Accused is acquitted…
6. State versus Shiv Pujan Rai & Another
This case pertains to seizure of a large quantity of cannabis. The prosecution cited and examined 11 witnesses. Both the accused persons belonged to villages near Patna in Bihar. They were poor and could not afford to engage private lawyers. Both of them were provided with counsel. During the trial one of the accused, Shiv Pujan Rai, tried to engage private lawyer but the lawyer did not continue. Trial could not start for about six months, as the Forensic Science Laboratory report was not available. The court framed charges on 1 April 2004 and prosecution evidence started. The case came up for hearing before the trial court on 62 occasions. The judge was not available on 13 occasions. One or the other of the lawyers appointed by the court was either absent or quick in seeking adjournments. Recording of almost all of the witnesses continued over more than one sitting per person for various reasons, either because the judge did not have time or defence counsel were either absent or sought adjournment. On two occasions recording of evidence was stopped for the reason that one suitcase which was to be shown to the court as evidence was accidentally locked and the police could find any person to open it. The prosecution did not produce the three police witnesses of recovery at the beginning of trial. They were produced last. Discrepancies in their testimony could have had significant bearing on the release of the accused persons on bail, although the accused did not move any bail application during trial. Both remained in jail for about four years. Ultimately the court held that the prosecution had failed to prove its case and they were acquitted.
According to the prosecution, on 6 December 2003, Assistant Sub-Inspector Ashok Kumar along with Head Constable Ayaz Khan and Constable Lal Bahadur were on duty near the eastern side of the stairs of platform 4/6 of Delhi Railway Station. At about 12:30am the accused persons were going outside the station and on seeing police they allegedly turned back. On suspicion, they were stopped. Shiv Pujan Rai (43) was carrying two suitcases on his head and Vidya Devi (35) had one suitcase in her right hand and a bag over her left shoulder. Both of Shiv Pujan’s cases were checked and allegedly contained cannabis, as did the suitcase and bag of Vidya.
The police reportedly told both accused that since cannabis had been recovered from them and they might be in possession of other narcotics, therefore, their search was to be taken and it was their legal right, if they so desired, to have it done in the presence of a gazetted officer or a magistrate, a right that both reportedly declined. The police also gave them written notices notice under section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The police informed the station house officer of the Railway Main Delhi Police Station about the matter and requested eight to ten passersby to join the proceedings as witnesses but all of them refused. The cannabis allegedly recovered from Shiv Pujan was weighed and found to be 38 kilograms while from Vidya it was 32 kilograms. The police reportedly took out one kilogram of cannabis from each of all three suitcases and the bag as samples and packed them in separate cloth packets. The remaining cannabis was packed separately in four packets. The police claimed that they filled in the prescribed form for sending the samples for testing to the Forensic Science Laboratory on the spot and that all eight packets and the form were sealed and the case property was seized as per seizure memos.
The information was reduced to writing and was sent to the police station through Constable Lal Bahadur. Thereafter, Sub- Inspector Ranbir Singh came to the spot and took possession of all documents and evidence and custody of the accused. A site plan was prepared; a report was sent to the superior officer; sample packets were sent to the Forensic Science Laboratory for chemical analysis.
Upon completion of investigation, the police filed a charge sheet against both the accused persons for possession of cannabis entailing punishment up to five years imprisonment and also a fine that may extend to 50,000 rupees on 3 February 2004. The charge sheet did not contain the forensic report and the court recorded that it was awaited. The matter was adjourned to February 17, when Shiv Pujan Rai’s counsel filed his power of attorney while the court appointed counsel for Vidya Devi. The matter was adjourned to 1 March 2004 to enable the police to file the forensic report; however, by this time it was still not ready. On March 15, the court issued notice to the investigating officer, as the forensic report was not filed on that day as well. The matter was adjourned to 31 March 2004 but neither the forensic report was filed and nor did the investigating officer appear. In fact, the notice issued to the investigating officer was not even received back.
The matter was adjourned to April 8, when the investigating officer, Sub-Inspector Ranbir Sing, appeared before the court and said that the forensic report was still not ready. The judge decided to write to the director of the Forensic Science Laboratory, Rohini, Delhi to expedite the forensic report. The court fixed 26 April 2004 as date for filing of the forensic report. The court directed the investigating officer to be present on that day; however, on that day again neither the forensic report was filed nor did the investigating officer appear. The court issued a bailable warrant against the investigating officer and fixed May 3 as the next date of hearing.
This date was declared a holiday therefore, the matter was taken up on 4 March 2004. On that day again neither the forensic report was filed nor did the investigating officer appear. The court again issued a bailable warrant against the investigating officer and fixed 15 May 2004 as the next date of hearing.
Around six months after the alleged seizure of cannabis, on 7 May 2004, the forensic report was filed. Now the charge sheet was complete. This become possible only when the court repeatedly issued bailable warrants against the investigating officer and the judge himself wrote to the director of the Forensic Science Laboratory. Copies of the forensic report were supplied to the accused persons on May 15.
The court found a prima facie case against both the accused persons and framed charges on 1 June 2004. The matter was adjourned to July 9, when three prosecution witnesses gave their statements but could not be cross-examined as the accused persons sought adjournment. Shiv Pujan Rai also asked for court- appointed counsel. The court appointed the lawyer representing Vidya Devi to him also and directed him to supply the necessary documents before adjourning the matter to August 3 when he did so and the case was again adjourned to August 12. However, on that date and the following, September 3, the judge was on leave. On October 5, prosecution witnesses statements were recorded and the matter adjourned to November 6 for remaining prosecution evidence. However, on that day the judge was again on leave, therefore, the matter was adjourned to December 9, when no witness appeared. The court ordered issuance of bailable warrants against two witnesses while summons with regard to two other witnesses were not received back. The case adjourned to 19 January 2005.
On 19 January 2005, examination-in-chief of the sixth prosecution witness was recorded, and two other witnesses were discharged without examination. The counsel for the accused persons was absent. The case was adjourned to February 15 but as the judge was on leave the matter was adjourned to March 23 when the examination-in-chief of the seventh prosecution witness was recorded and another witness was discharged without her examination as defence counsel was not present. Shiv Pujan engaged a lawyer who filed his power of attorney. The case adjourned to April 23 when fresh power of attorney was filed again on behalf of Shiv Pujan and the examination-in-chief of the eighth prosecution witness was partly recorded but stopped midway when a suitcase which was to be exhibited in court did not open as its middle lock got stuck. The court directed the police to arrange a person who may unlock the suitcase. The case adjourned to May 20, when four witnesses were present but the lawyer for the accused sought adjournment and the matter was moved to July 4, at which time the lawyer for Shiv Pujan Rai cross-examined the seventh prosecution witness while counsel for Vidya Devi was not present. The matter was adjourned to August 2 when the court appointed a new counsel to her and examinations-in-chief of the ninth and tenth prosecution witnesses were partly recorded and the matter was adjourned to September 2, when the examination-in-chief of the eleventh prosecution witness was partly recorded.
Thereafter the matter was fixed for 23 September, 31 October and 25 November 2005; and 10 January, 10 February, 7 March, 12 April, 9 May, 5 July, 21 August, 6 September and 11 October 2006, however, no trial took place. Out of these 12 occasions, the judge was not available on six occasions; lawyers were not available due to a strike on two occasions; court-appointed counsel was not available on one occasion; a new court-appointed counsel for Shiv Pujan Rai sought adjournment on one occasion; the public prosecutor was on leave on one occasion, and on the last date the statement of the eight prosecution witness could not be recorded for non-availability of a person who could open the suitcase which had got stuck on 23 April 2005 during recording of evidence. The court had directed arrangement for opening the suitcase on that date but apparently nobody cared and even after the lapse of more than a year the suitcase again derailed the trial.
On 8 November 2006, the statement of the eleventh prosecution witness was partly recorded and the matter was adjourned to November 29 when the witness completed testimony and statements from the eighth and tenth witnesses also were taken. On the next two dates, i.e. 6 January and 21 February 2007, no prosecution witness was available, while on March 5 the lone remaining was present but sought adjournment because of illness, whereupon the witness testified on March 21 and the prosecution evidence was closed. The matter was adjourned to April 11 for recording of the statements of the accused persons.
On 11 April 2007, statements of the accused persons were recorded and the case was adjourned to May 5; however, on this date the public prosecutor was on leave and the matter was adjourned to May 29 when counsel for defence requested an adjournment. On next two dates, i.e. July 11 and August 16, the judge was not available. The case was transferred to a new court and adjourned to August 23. Finally, on September 20 arguments on behalf of the accused persons were heard and the matter was adjourned to September 26 when the judge sought some clarifications and adjourned the matter to October 1. However, on that date the defence counsel were absent while on October 11 the judge was on leave. On October 18, counsel for Vidya Devi sought adjournment to cite some precedents before the court and the matter was adjourned October 20 when the court heard further arguments and matter was again adjourned to October 25 for judgment, but on that day and October 30 the court did not have time for judgment so the matter was adjourned to October 31.
On 31 October 2007, the judge pronounced both the accused persons not guilty and ordered their release.
7. State versus Virender a.k.a. Lilu
This case pertains to a narcotic drug user. He was arrested under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, as possession of such drugs in small quantities for personal use is a punishable offence entailing a sentence of up to one year and fine. He was imprisoned for 107 days as an under-trial prisoner.
Police caught the accused on 24 February 2004 at about 2pm on Rani Jhansi Road near Gali Chimini Mill, Sadar Bazar, New Delhi. He was allegedly consuming heroin using a matchstick, paper pipe and aluminum foil. The matchstick, cigarette foil and foil pipe were seized. No narcotics or psychotropic substances were recovered.
The accused remained in custody till April 8, i.e. 43 days. He was granted bail on that day upon furnishing his personal bond for 5000 rupees.
On June 11, the police filed a charge sheet before the metropolitan magistrate at Tis Hazari. It is pertinent to note that all the documents annexed with the police report are dated 24 February 2004, suggesting that no investigation was carried out after that date. The station house officer in charge of Sadar Bazar station had also apparently signed the charge sheet on May 22. However, the magistrate found that the forensic report regarding the contents of the seized material was not produced, therefore, he ordered the police to file the forensic report. He also ordered issuance of summons to the accused for appearance before the court. The court fixed 27 May 2005 as the next date of hearing.
The order sheet dated 27 May 2005 says that the accused did not appear on that day. The court ordered issuance of bailable warrant against the accused. However, it erroneously recorded that the Forensic Science Laboratory result had been filed. The court fixed 3 March 2006 as the next date of hearing.
On 3 March 2006, the accused was again absent. The court forfeited his bail bond and ordered issuance of non-bailable warrant, then fixed October 31 as the next date of hearing, when it directed attachment of property of the accused and stated process of declaring him a proclaimed offender. The case was fixed for hearing again on 11 September 2007.
On 11 September 2007, the accused person Virender a.k.a. Lilu voluntarily appeared before the court. Instead of canceling the non-bailable warrants, the court had him arrested and sent to jail. The court ordered that the accused be produced before it every 14 days for extension of his judicial remand, i.e. on 25 September, 9 and 23 October, and 6 November 2007.
The court found that despite the order dated 11 June 2004, the police had not in fact filed the forensic report. The court ordered that the investigating officer be present and explain reasons for non-compliance before fixing November 13 as the next date of hearing. But on that day, neither the Forensic Science Laboratory result was filed nor was the investigation officer present, despite the order of the court.
By 13 November 2007 the accused had remained in jail for 64 days without any proceedings before the court; he moved an application pleading guilty and seeking that he be released on the sentence already undergone by him. The court framed charges under Section 27 of the Narcotics and Psychotropic Substances Act, 1985 to which he pleaded guilty. The court convicted him on his plea of guilt and sentenced him to the period already undergone by him.
8. State versus Sri Chand & Ors
This is case pertains to a young man who was murdered by his neighbours in the presence of his brother and father on 25 January 1992. His younger brother Baleshwar was also attacked and injured in the same incident. The family of the deceased took full interest in the prosecution of the accused persons and attended every date at the trial court to see that they got justice. The trial continued for around five years. Finally, the trial court, disbelieving both the eyewitnesses, acquitted the accused persons. The eyewitnesses made representation to the Delhi state government to appeal against the acquittal. The state government informed them that it would appeal against the judgment and that the file had been sent to the concerned sub-divisional magistrate for filing in the Delhi High Court. However, no appeal was ever filed. Ultimately both the eyewitnesses were forced to file a criminal revision petition against the judgment, in February 1998, which remained pending for more than nine years before the Delhi High Court. The court in its judgment dated 13 July 2007 refused to interfere with the acquittal and dismissed the petition. Both the eyewitnesses have now preferred a Special Leave Petition before the Supreme Court of India, which at time of writing had issued notice on the petition.
Briefly, the facts relating to this case are that the accused persons’ and the victim’s families were neighbours, living in quarter numbers 63 and 62 respectively, located on the first floor of the New Delhi Municipal Committee (NDMC) Quarters, Khan Market, New Delhi. The NDMC quarters are housed in a double storied structure. Each quarter consists of one room measuring around three by three metres, and has some additional covered space in the rear. The roof of these quarters is a common area, without any demarcation and is accessible by a general staircase situated in the block. However, the accused Sri Chand had illegally constructed a room on the portion of the roof above his quarter and had let it out to another accused person, Dharambir a.k.a. Veere.
Originally, the quarters only had common latrines, with one latrine being shared by four quarters. These latrines were situated on the landing between the ground and the first floor. As immediate neighbours, the victims and the accused shared one such latrine. Subsequently, the NDMC also constructed individual latrines attached to each quarter. After these latrines were built, the accused persons put their lock on the common latrine. Though this was illegal the other residents had refrained from joining issue with them for the sake of maintaining good relations; however, when the maternal grandfather of deceased Rajinder and injured Baleshwar came to visit them, Baleshwar and Rajinder asked the accused persons to unlock the common toilet for his use. The accused persons refused to comply with this request, which resulted in an altercation. Thereafter, Baleshwar and Rajinder broke open the lock and the accused persons Sri Chand, his son Samir and brother Jai Prakash threatened Baleshwar and Rajinder that they would take revenge.
On 25 October 1992 around 9pm, Baleshwar; Rajinder, his wife Usha and their two-year-old son went to the roof of their residence to let off crackers for the Deewali festival. Baleshwar stood on the corner of the said roof, above quarter number 64, watching the fireworks. Around 9:30pm, Dharambir was joined by the three other accused. Thereupon Sri Chand and Dharambir passed some lewd remarks to Usha and Rajender rebuked them. Upon this, all the accused pounced upon him, attacking him with fists and feet. Baleshwar went to his brother’s rescue. However, accused Dharambir prevented him from doing so by grabbing hold of him.
On seeing the quarrel Usha rushed downstairs to seek help. In the meantime Samir went inside Dharambir’s room and came out with a knife. He exhorted his father and uncle, “Catch hold of them. We shall finish off both brothers today itself.” (“Tum inhe pakro aaj hee dono bhaiyon ka kaam tamaam kar dete hain.”) Sri Chand and Jai Prakash caught hold of the deceased and Samir allegedly stabbed him three to four times in his chest and abdomen. Immediately after that he allegedly made three or four attempts upon Baleshwar, who avoided all except one, which resulted in a cut on the left side of his abdomen.
Sri Prakash, father of Baleshwar and Rajinder, rushed to the terrace immediate upon being told of the quarrel by his daughter- in-law, along with two neighbours, Chander Pal and Brajesh. Sri Prakash says that he saw Samir come out of the room with the knife and that he saw him inflict the wounds upon Rajinder and Baleshwar.
Thereafter, all the accused persons fled. Rajinder was taken to Safdarjung Hospital, Delhi. Shortly thereafter, the injured eyewitness Baleshwar was also taken to Safdarjung Hospital. Rajinder was declared dead on arrival at 10pm.
Upon receiving information, police from Tughlaq Road Police Station reached the spot. One policeman was left to guard the scene of the crime while the investigating officer and another left for Safdarjung Hospital where they met Baleshwar. He moved an application to the duty doctor seeking permission to record his statement. The doctor declared him fit for making a statement, which was duly recorded and sent to the police station for registration of the FIR, which was done at 11:35pm.
On 26 October 1992, the investigating officer raided Sri Chand’s house and finding him and Jai Prakash inside arrested them. He also seized bloodstained clothes belonging to the two. The other two accused Samir and Dharambir subsequently surrendered in court.
With investigations completed, the charge sheet was filed, charges were framed against all the four accused persons and they were tried for the offences of murder and attempted murder.
Giving benefit of the doubt, the trial court on 29 August 1997 acquitted all the accused. Its judgment holds that the accused persons had the necessary motive for the crime and that the presence of the accused at the place and time of incident is also not disputed and that the accused had run from the scene. However, it acquitted them on the ground that the presence of the two eyewitnesses to the murderous assault, one of whom was injured in the same incident, had not been established.
On 9 September 1997, Baleshwar moved a representation to the lieutenant governor of Delhi praying that the state file an appeal against the judgment acquitting the accused. On November 5, Baleshwar again moved a representation to the home secretary of the NCT Delhi government reminding about his earlier representation, and reiterating his request that the state should appeal.
On 26 November 1997, the home department consultant of the Delhi Administration informed Baleshwar that the state has decided to file an appeal against the acquittal of the accused persons. The letter further stated that the file had been sent to the concerned sub-divisional magistrate for the necessary steps.
Yet, no appeal was in fact filed. Therefore, on 19 February 1998, Baleshwar and Sri Prakash filed a criminal revision petition before the Delhi High Court. More than nine years after issuing notice on the petition, the court dismissed the petition on 13 July 2007 holding that its power under the revisionary jurisdiction is “very limited”. Baleshwar and Sri Prakash then approached the Supreme Court of India by filing a special leave petition. The Supreme Court issued notice to the accused persons on 23 November 2007 and at time of writing the matter is pending there.
9. State versus Jitender a.k.a. Khanna
In this case, the prosecutrix was married to one Parminder and was residing at her matrimonial home. A son was born to her out of the wedlock. However, on 13 March 2002 she went missing and her mother lodged a report with the police against her in-laws alleging harassment for dowry. She subsequently alleged that the prosecutrix had been kidnapped. The prosecutrix and accused were apprehended and the accused charged. Criminal proceedings continued for more than five years. The prosecution examined 14 witnesses; the accused did not examine any witness. The matter was listed for recording of prosecution evidence on 19 dates spanning around two years. The accused was present on all these occasions. Prior to committal before the additional sessions judge, the case was listed for various purposes before metropolitan magistrate on 20 dates. The accused also had to remain in jail for some days during investigation before being acquitted.
On 13 March 2002 prosecutrix ‘X’ went missing and her mother Shanti lodged a report with the police against her in-laws alleging harassment for dowry. The police registered a case on the same day. On March 20, she alleged that her daughter had been kidnapped and the police registered a case for kidnapping.
According to the prosecution, the police found during investigation that the accused Jitender a.k.a. Khanna had kidnapped the prosecutrix ‘X’ and had taken her to a village in Ludhiana District of Punjab.
On 21 August 2002, police reached at Hamra village and found both the prosecutrix and accused Jitender residing there at the house of one Nek Singh. Both of them were apprehended. Police recorded a statement of the prosecutrix in which she alleged that she had been raped by the accused. The police added section 363/376 of the Indian Penal Code to the FIR, alleging rape. The statement of the prosecutrix was recorded before a metropolitan magistrate in Delhi and she was medically examined. Interestingly, in her statement recorded on oath she did not level any allegations of kidnapping or rape against the accused. On the contrary, she specifically stated that she was residing with the accused for about six months with free consent and was pregnant. She gave reason for staying with the accused as that her in-laws used to harass her and her mother was reluctant to keep her at their house.
The investigating officer sent the exhibits for analysis and subsequently collected a forensic report, recorded the statements of concerned witnesses at different stages of investigation and after completion of the investigation, filed a challan on 12 December 2002 against Jitender; Parminder, the husband of the prosecutrix; Maya, the mother-in-law, and Babita, the sister- in-law.
Thereafter, the case remained pending before the metropolitan magistrate till 17 March 2004. During this period, the offences pertaining to alleged dowry harassments were compounded. The prosecutrix and her husband were divorced by mutual consent and the high court quashed proceedings against the husband and in-laws of the prosecutrix in an order dated 12 November 2003.
The magistrate committed a charge sheet pertaining to Jitender for trial on 30 March 2004. After around nine months of committal, the additional sessions judge on 25 October 2004 framed charges for kidnapping for the purpose of illicit intercourse and rape against the accused. The accused pleaded not guilty and claimed trial.
The court fixed the matter for recording of prosecution evidence on 14 and 18 January 2005 but recording started on March 18 and three prosecution witnesses were examined. It was found that report of the Forensic Science Laboratory had not been filed before the court. The court issued notice to the station house officer to file the same on or before February 28 and adjourned the matter for remaining prosecution evidence on March 19 and 23. However, on March 19 no witness was examined as the judge had gone to attend a seminar at the Judicial Academy in Karkardooma, Delhi. On March 23 one witness appeared who was examined and the matter was adjourned to May 30 when three witnesses were present but only one was examined, as the judge was to record the statement of the accused in some other case. On August 1 no prosecution witness appeared and the case was adjourned to September 29 and October 4. On the first date the prosecutrix and her mother were examined, while on the second no witnesses except the investigating officer were present. The case was adjourned to November 19 with the direction to present all the prosecution witnesses; however, on this date too no witness appeared before the court and the matter was adjourned again.
On 23 and 27 February 2006 as the judge was on leave no evidence could be recorded, and the case was further adjourned to April 25 when two witnesses appeared and were examined. The case was again adjourned for recording remaining prosecution evidence to July 25. On that day two witnesses appeared and were examined. The court specifically issued directions to present witnesses on September 28 and 29 but again no witness was present. It was found that one witness, a police constable, had not appeared despite service of summons. The court issued bailable warrants against him. On September 29, one witness was examined while another witness, a police sub- inspector, had likewise not appeared despite service of summons. The court issued bailable warrants against him. The court again directed that all the remaining prosecution witnesses be summoned for 5 December 2006; however, on this date the judge was on leave and the matter was once again adjourned.
On 20 February 2007, one witness appeared but he was given up by the prosecution and evidence was recorded. The court again directed that all the remaining prosecution witnesses be summoned for May 1 when another witness was examined and the prosecution evidence was closed. The case was adjourned to May 24 for recording the statement of the accused. Thereafter the case was fixed for final arguments on July 9; however, on that date the accused engaged a new counsel who sought adjournment and subsequently again August 18 and October 6.
On 5 November 2007, final arguments were heard and on November 15 the court acquitted the accused. In the judgment, the court said that:
No complaint whatsoever was ever lodged by the prosecutrix or her mother against the accused prior to the incident regarding his objectionable conduct and behavior. There is nothing on record to show if prior to the incident, the accused had ever threatened the prosecutrix or had outraged her modesty. It has come on record that on the date of incident, the prosecutrix had accompanied the accused to a long distance at Hamra, District Ludhiana in a bus. At no stage the prosecutrix raised alarm alleging her forcible kidnapping. The prosecutrix remained with the accused for about more than five months and had sexual relations with him there. It has further come on record that at the time of apprehension, the prosecutrix was pregnant and had delivered a child which was found dead. At no stage, the prosecutrix who was already a married lady bothered to inform her parents or her in-laws about her stay with the accused. She did not complain to anyone in the neighborhood regarding kidnapping or forcible rape. No injuries on the person of the prosecutrix were found showing forcible rape on her person by the accused. Prosecutrix has admitted that the accused had kept her for some days at the residence of his bua. Even at that place, the prosecutrix did not bother to raise any alarm. The prosecutrix remained peacefully with the accused for about more than five months and was apprehended on 21/8/02 by the police.
15. Her statement U/s 164 CrPC was recorded. In her statement U/s 164 CrPC, the prosecutrix did not level any allegations of kidnapping or rape against the accused. Rather she specifically stated that she was residing with the accused for the last about six months with her free consent and was pregnant. She gave reason for staying with the accused as her in-laws used to harass her and her mother was reluctant to keep her at her house. There is nothing to disbelieve the statement of the prosecutrix made at the first instance before the ld. MM. Only in her deposition before the court the prosecutrix has come up with a new plea that the said statement was made by her under threat from the accused.
It has come on record that accused himself was in judicial custody at that time. There was no occasion for him to extend any such threat to the prosecutrix. The prosecutrix was accompanied by the IO and her mother at the time of making statement U/s 164 CrPC. So there was nothing to influence the mind of the prosecutrix to favour the accused at that time.
16. The prosecutrix has concocted a new story that the accused used to remain armed with a gun and extend threats to her. No weapon whatsoever was recovered from the possession of the accused at the time of his arrest. The accused is not expected to retain the weapon in his possession all the times to create real apprehension in the mind of the prosecutrix not to get herself freed.
17. The prosecutrix did not explain in her deposition before the court as to how and under what circumstances she was enticed by the accused to accompany him. Only in the cross examination, the prosecutrix stated that the accused had falsely misrepresented her that her father was ill and she had accompanied in a hurry with him. Statement of her mother PW 7 Shanti is entirely contrary to that. In her statement, PW 7 Shanti disclosed that the prosecutrix had visited her on 9/3/02 and on the next date she had happily returned along with her husband to her matrimonial home. On 13/3/02 she received a telephone call from her in-laws house that the prosecutrix had not reached there. It shows that the prosecutrix and the accused had gone without informing the in-laws and the parents of the prosecutrix prior to 13/3/02. Prosecutrix has failed to explain as to why she did not reach at the house of her husband on 10/3/02.
18. Prosecution has examined PW 8 Harnek Singh at whose residence both the accused and the prosecutrix had stayed prior to their apprehension. In his deposition before the court, PW 8 did not state if the accused had ever extended any threat to the prosecutrix. In the cross examination, the witness rather stated that both the accused and the prosecutrix were residing in his premises as husband and wife. No quarrel took place between the two in his presence. They had stayed there only for two days in his premises. Both of them were earlier residing in the premises of someone else. Prosecution did not examine any such person from the village at whose residence both of them has stayed prior to their shifting at the house of PW 8 Harnek Singh.
19. All the facts and circumstances discussed above reveal that the prosecutrix was a consenting party throughout. She had voluntarily accompanied the accused with her free consent and had stayed with him. The sexual relations, if any, were the result of that free consent.
10. State versus Vijay a.k.a. Pappu
In this case, trial continued for more than three years. All the six witnesses were policemen. The accused remained in jail for one month and three days. The trial was held on nine dates, and the accused was present on every date of hearing. The court fixed seven dates for recording of prosecution evidence but only three out of six witnesses were examined. The prosecution did not examine one material witness who had investigated the case and filed the charge sheet before the court. The court acquitted the accused.
According to the prosecution, on 9 September 2004 at about 8:30pm Head Constable Brij Pal Singh and Constable Ranvir received information that the accused was sitting at the eastern side of platform no. 4/5 of the Sarai Rohilla Railway Station in Delhi with a button-operated knife and that he might commit some offence. On this information, they reportedly requested four to five passengers to join them as witnesses but none of them obliged.
They allegedly reached the spot and apprehended the accused. They searched him and allegedly recovered the button-operated knife from his right pants’ pocket. The knife was measured and a sketch was prepared. It was sealed in a packet and was taken into police possession. The information was sent for registration of an FIR whereupon Head Constable Narsi Ram took over the investigation.
The accused was arrested and was sent for trial. Copies of the charge sheet and other documents were supplied to the accused and charges framed under the Arms Act. The accused pleaded not guilty and claimed trial.
The accused Vijay was granted bail on 20 September 2004 on the condition that he would execute a personal bond for 10,000 rupees along with one surety of the same amount. As he could not find a surety his counsel moved an application for reduction of the bail amount on September 30 before the additional sessions judge, who reduced the amount to 5000 rupees.
Meanwhile, the trial commenced on 24 September 2004. Copy of the charge sheet was supplied to the accused, and the case was adjourned to October 8, when the court framed charges under sections 25/54/59 of the Arms Act, 1959 for illegal possession of a knife. On this date, as the accused still had not found any surety for the bail bond the judge further reduced the amount to 3000 rupees. The case was adjourned to November 4 for recording of prosecution evidence. That day the judge was on leave and the case was adjourned to the next year. On October 12 the accused was released on bail after finding surety for the reduced amount.
On 4 May 2005, the accused applied for exemption from personal appearance, which was allowed. The matter was adjourned to November 7, when one witness was examined. No other witness was present. The court issued bailable warrants against Constable Ranvir as he had not appeared despite service of summons. The matter was adjourned and date was fixed for around ten months later, on 6 September 2006. On that date two witnesses were examined and the matter was adjourned to December 12 for recording remaining prosecution evidence, but no prosecution witness appeared and the case was again adjourned to the following year.
On the next date, 21 September 2007, no prosecution witness again appeared. The judge ordered closure of prosecution evidence and adjourned to October 16 for recording statement of the accused, whereupon final arguments were made. On November 3, the court pronounced the judgment and acquitted the accused.