Decided on May 21,2007

KAMLESH Appellant


S. Ravindra Bhat, J. - (1.) THIS revision petition challenges an order of acquittal, by the Additional Sessions Judge, under Section 304, Indian Penal Code, dated 8 -2 -2005. According to the prosecution, one Deepak @ Deepu was attested by the Sarojini Nagar police for offences punishable under the Arms Act; First Information Report (FIR) being No. 364 of 96 was registered against him on 25.8.1996. It was alleged that on 29.8.1996, Deepak was taken to Safdarjung hospital for X -ray. He was taken to the hospital from Patiala House Courts in the custody of HC Girish Prasad, respondent No. 2 and the respondent No. 3, another policeman.
(2.) DEEPAK escaped from the custody of police i.e. respondent No. 2 and 3 and could not be traced. Case FIR No. 374 of 1996 was accordingly registered against him under Section 224 I.P.C. and a police search party was involved in searching him. On 30.8.1996, at 4.20 AM, information was received at Police Station Sarojini Nagar that the body of an unknown person had been left by some one in the casualty ward of Safdarjung hospital. S.I. Rajender Pal was sent to the hospital. Soon thereafter, Smt. Kamlesh Kumar, Addl. S.H.O. P.S. Sarojini Nagar too reached there. She inspected the dead body and conducted enquiry and came to know that the dead body was of Sonu, the brother of Deepak who had earlier escaped from police custody. She suspected that Sonu's body had been left in Safdarjung hospital by the staff from her police station. She, accordingly sent a written report, (ruqua) to the police station Sarojini Nagar leading to lodging of FIR No. 375 of 1996 under Sections 304/34 IPC. During investigation of the case, it was found that respondents No. 2 to 9 had gone to Deepak's house, at D -58, Chanakaya Place and had brought Sonu, the deceased and brother of escaped Deepak. This had been witnessed by Arvind Kumar, Smt. Geeta and Km. Roopa, the father, wife and sister of Sonu. The respondents allegedly subjected Sonu to interrogation and heavy beating to find out the where -abouts of Deepak as a result of which he expired and on his death, his body was left in the Safdarjung hospital.
(3.) THAT the respondent accused were arrested and put to Test Identification parade where 14 witnesses were produced to identify them as the accused responsible for the death of Sonu. However, no witness could identify them. After the failure of the T.I.P. as against respondent No. 3, and after the case was transferred to Crime Branch for further investigation, on 14.3.97, i.e. after 7 months of the incident, when the respondents were on bail, respondent No. 3 was shown to have been called in the office of Crime Branch, Adarsh Nagar, Delhi where, three main witnesses namely Arvind Kumar, Smt. Geeta and Km. Roopa, the father, wife and sister of the deceased were present. The three witnesses allegedly identified the third respondent in the presence of the Investigating Officer in the Crime Branch Office as one among the person who had arrested Sonu from his house on 29.8.1996. On the basis of the facts and evidence, the respondent accused were charge -sheeted; the order on charge was made on 9.1.2001; to which they pleaded not guilty.;

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