Om Prakash @ Leela vs State
1986 Latest Caselaw 365 Del

JUDGMENT

Jagdish Chandra, J.

(1) The appellant 0m Prakash @ Leela was convicted under section 325 Indian Penal Code and sentenced to undergo rigorous imprisonment there under for five years and also to pay fine in the sum of Rs. 200.00 and in default of payment of fine to undergo further rigorous imprisonment for six months by Shri V.S. Aggarwal, Addl. Sessions Judge, Delhi, and the judgment of conviction and the order of sentence were passed on the same day i.e. 18th November, 1985. Feeling aggrieved with the judgment of conviction and the order of sentence the appellant has come up to this court in appeal.

(2) The case was initially filed under section 307 Indian Penal Code and even the charge was formed by Shri S.M. Aggarwal, Addl. Sessions Judge, Delhi, under that very provision of law, but while recording the judgment of conviction Shri V.S. Aggarwal, Addl. Sessions Judge came to the view that there was no intention on the part of the appellant to murder and so he held him guilty under section 325 Indian Penal Code and convicted him accordingly there under.

(3) The injured persons in this case are Raj Kumar and Kameshwar and their wives arc Smt. Tari and Smt. Tara respectively. According to the prosecution allegations both these ladies are professional dancing girls on 115 G.B. Road, Delhi, and their husbands are residents of Village Katlana, District Uttar Kashi (U.P.) and both of them are cousins and they had come to visit their wives for a couple of days and on 4th November, 1983 at about 7.30 P.M. when both of them along with their two wives were present at Flat No. 64, G.B. Road wherein Smt. Tara & Smt. Tari were residing, the appellant 0m Prakash @ Leela came there and demanded a bottle of liquor from injured Raj Kumar on whose refusal 0m Prakash appellant took out a knife and stabbed in the abdomen both of Raj Kumar as well as Kameshwar and both these injured persons were then taken to the hospital by Gyano servant of Smt. Tara and Tari where both of them were medically examined.

(4) The learned counsel for the appellant has vehemently assailed the judgment of conviction under appeal by pointing out that whereas both the injured persons Raj Kumar and Kameshwar had stated that each of them had received three knife injuries at the hands of the appellant 0m Prakash, their respective M.L.Cs. Ex. Public Witness 7/A and Ex. Public Witness 7/B recorded on the day of occurrence i.e. 4th November, 1983 showed only one knife injury each on their person and the learned Addl. Sessions Judge was in error in relying upon the so called explanation given by injured Raj Kumar and by further observing that the possibility could not be ignored that the other blows were not serious enough to be noticed. The learned Addl. Sessions Judge has dealt with this matter in para No. 24 of his judgment and has further observed that as it is established that it was the accused who inflicted the relevant injuries, there was no escape from the conclusion that the accused was the guilty person and there was no shadow of doubt in that direction. The testimony of both the injured persons unmistakably show that they did receive three knife blows on their respect, ve persons. The statement of Raj Kumar injured Public Witness I shows that the first knife blow was inflicted on his stomach and on the receipt of the second blow he fell down on the ground and a third knife blow was given when be had fallen on the ground and on receipt of the third knife blow he had fallen unconscious. This leaves no doubt that as per his testimony he received three clear knife blows on his person. The other injured person Kameshwar Public Witness 4 has also categorically stated that when he wanted to rescue Raj Kumar, he was also stabbed three times by accused Leela. It would be also seen that their wives Smt. Tari and Smt. Tara have also, in their cross-examination, talked of three injuries on the person of each of the injured persons, I ari in her cross-examination as Public Witness 3 stated that on the receipt of the first blow of knife Raj Kumar fell on the ground and thereafter the accused inflicted3/4 more blows on the person of Raj Kumar and that she had come forward to save her husband. About Kameshwar she stated in her cross examination that Kameshwar fell down after receiving the second blow and that Kameshwar received three knife injuries. Smt. Ta a Pw 2 has also talked of the receiving of three knife blows on the person r f each of the injured persons. Strangely enough the M.L.Cs. pertaining both the injured persons show only one knife injury each on their persons instead of three on each of them. Both these injuries are on the abdomen. On the basis of this inconsistency appearing in the testimony of the four eye witnesses including the injured persons on the one hand and the aforesaid medical evidence on the other regarding the number of injuries, the learned counsel for the appellant urges that it is a clear case of acquittal by suggesting further that the alleged occurrence bad taken place on 4th November, 1983 at 7.30 P.M. when it was night time and the possibility of somebody else having stabbed these two persons whom the eye witnesses could not identify on account of darkness or otherwise and all the four eye witnesses throwing the 116 entire guilt on the accused-appellant so as to implicate him and save themselves and the other residents of the locality from his harassing and extorting activities, cannot be ruled out.

(5) The contentions of the learned counsel representing the State that when the testimony of other witnesses is reliable, the medical evidence should not be given precedence over the same if there is inconsistency between the two for which proposition of law reliance is placed upon Punjab Singh v. State of Haryana and Karnail Singh v. State of Haryana, 1984 Cr. L.J 921 and that there is a tendency that the injured person as also their near relations do exaggerate regarding the number of blows inflicted, cannot be accepted in this case inasmuch as the aforesaid Supreme Court authority lays down the rule of the preference of direct evidence if it is satisfactory and reliable as against the hypothetical medical evidence and hypothetical medical evidence means the opinion evidence of the Doctor as against the factual position stated in the medical report and in the case in hand the mention of only one injury in the M.L.Cs. of both the injured persons is factual and not hypothetical and furthermore the direct evidence comprises the statements of the injured persons and their wives and of no independent witnesses and thus the aforesaid discrepancy in the number of injuries gives fatal blow to the prosecution case especially when the aforesaid possibility of somebody else having injured the injured persons and not known to the witnesses cannot be ruled out as already pointed out above which factor can go against establishing the identity of the appellant as the assailant.

(6) The explanation of injured Raj Kumar Public Witness I relied upon by the learned trial court appears to be of no avail in obviating the aforesaid inconsistency in the number of the stab injuries. He staled as follows : "Two knives of the accused had fallen on the same place on the right side of the lower abdomen, whereas his third blow had fallen on the left side."

(7) In the first plats it is well nigh impossible that the two strikes of the appellant with a knife should fall at the same place on the person of the injured and even if it be so, then there should be at least two stab injuries on the person of the injured, one caused by the two strikes of the knife at the same place of the person and the third on other part of the person of the injured and even this hypothesis cannot possibly fit in with the M.L.C. of injured Raj Kumar which shows only one knife injury on his person.

(8) The further observation of the learned trial Judge that the possibility cannot be ignored that the other blows were not serious enough to be noticed, hardly commends itself because the blows were inflicted with knife and not with any blunt weapon in which case some of the blows may not be noticed. Furthermore as per the testimony of injured Raj Kumar he and the other injured person Kameshwar had received three knife injuries each in their abdomen and that injured Raj Kumar fell down on the ground on the receipt of the second knife blow.

(9) In view of the aforesaid discussion the appeal succeeds and consequently accepting the same the judgment of conviction and the order of sentence under appeal are set aside and the appellant is acquitted under the benefit of doubt. Appeal allowed 121

(10) During the pendency of these proceedings the Court issue notices to the Punjab National Bank, the Bank of Baroda and the State Bank of India and also the Credit Guarantee Corporation of India (Small Loans) to ascertain whether banks are willing to extend financial assistance to the rickshaw pullers to acquire the ownership of cycle rickshaws and to ply them within the Corporation area and also to ascertain whether the Credit Guarantee Corporation of India (Small Loans) would guarantee the loans advanced to the rickshaw pullers, The learned counsel for these banks and the Credit Guarantee Corporation of India (Small Loans) have submitted that the banks are willing to advance up to Rs. 2,000.00 by way of loan at reasonable rate of interest to the rickshaw pullers on the security of the cycle rickshaw owned by them in order to assist the rickshaw pullers to acquire the cycle rickshaws. The banks have put forward before the Court two scheme : (1) the scheme for finance to cycle rickshaw pullers, and (2) Self-employment programme for urban poor (SEPUP) under which it is possible for them to give financial assistance to the rickshaw pullers. The Credit Guarantee Corporation of India (Small Loans) is agreeable to guarantee the repayment of loans advanced to the rickshaw pullers. The Corporation authorities are agreeable to issue necessary eligibility certificates to the rickshaw pullers to obtain the loan.

(11) In view of the above submissions, we direct the several branches of the Punjab National Bank, the Bank of Baroda and the State Bank of India operating in Delhi to give financial assistance to rickshaw pullers who wish to own cycle rickshaws and ply them under licenses issued by the Corporation subject to their producing the necessary eligibility certificate issued by the Corporation and satisfying the other terms of the Schemes referred to above. We also direct the Delhi Administration to comply with the directions issued by this Court in Nanhu & Others (supra).

(12) In the course of the argument the learned counsel for the petitioners incidentally made a complaint about the seizure of cycle rickshaws by the Corporation officers without issuing an acknowledgment to the owners whenever they found that the cycle rickshaws were being used on the roads contrary to the rules. The learned counsel for the Corporation stated that whenever the cycle rickshaws are seized written acknowledgments will be issued to the owner if he is found near the cycle rickshaw at the time of its seizure. We record the above statement made on behalf of the Corporation.

(13) These petitions are accordingly disposed of. No costs. Petitions disposed of accordingly