State vs Krishan Kumar And Ors.
2005 Latest Caselaw 280 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal is filed by the State as against the judgment and order of acquittal passed by the learned Additional Sessions Judge, Delhi in Sessions Case No.101/1996 acquitting Jagbir Singh and Tarun Kumar from all the charges.

2. The police registered a case on the basis of an information received from Vijender Solanki, PW-1, that Krishan Kumar who was also one of the accused would fire a shot at some of the family members of the complainant and that on 30.11.1991 at about 4.30 p.m. when Vijender Solanki along with his friend Rajender Singh were standing in front of his house, they saw Jogender (deceased) was standing near the house of Kesho Ram, father of accused Jagbir Singh and Krishan Kumar. It is also alleged that at that time the respondent-accused Tarun Kumar, who was residing as a tenant in the house of the father of the other accused persons and Jagbir Singh caught hold of Jogender, whereupon accused Krishan Kumar took out the revolver and fired a shot on the chest of Jogender, when the complainant Vijender Solanki and Rajender Singh ran towards Jogender, who after receiving the injuries fell down and became unconscious. It is also alleged that on hearing the noise, Dhare, who was living in the neighborhood also came at the place of occurrence and that all the three accused persons ran from there towards Shiv Mandir and at that time a revolver was also seen in the hands of accused Tarun Kumar by the complainant, Vijender Solanki and Dhare. The deceased was taken to Sanjay Nursing Home by the complainant and Rajender Singh and Dhare in the car and the doctor after examining the injured advised them to remove the injured to some Government hospital and thereafter all the three persons took the injured to Din Dayal Upadhaya Hospital in the PCR Van, where the doctor declared Jogender as brought dead.

3. On the basis of the said information the police registered a case under Section 302 read with Section 34 of the Indian Penal Code as also under Section 25/27/54/59 of the Arms Act. The accused Krishan Kumar, however, could not be apprehended by the police and was declared a proclaimed offender on 18.3.1995. Therefore, charge-sheet was filed against Tarun Kumar and Jasbir Singh by the police under Section 302/34 IPC. Charges were framed against the aforesaid two persons, to which the accused persons pleaded not guilty and accordingly they were tried.

4. During the trial the prosecution examined as many as 21 witnesses. The accused persons were also examined under Section 313 of the Code of Criminal Procedure. Thereafter, the learned counsel appearing for the parties were heard. The learned Sessions Judge by his impugned judgment and order dated 13th April, 1997 passed an order of acquittal in respect of both the accused persons who are respondents herein.

5. Being aggrieved by the aforesaid judgment and order of acquittal, the present appeal was filed by the State which was admitted.

6. We have heard the learned Additional Public Prosecutor appearing for the appellant who has taken us through the evidence on record and has vehemently argued that the judgment and order of acquittal passed by the learned Additional Sessions Judge is illegal and the same has been passed without properly appreciating the evidence on record.

7. We have carefully considered the aforesaid submission in the light of the records of the case. The complainant, Vijender Solanki stated in his deposition as also in the First Information Report that he had an information about two to three days prior to the date of occurrence that Krishan Kumar would fire a shot at some of his family members. Even despite receipt of the aforesaid information the said witness had clearly stated in his statement before the court that he never informed anyone about he aforesaid information received by him. He did not also report the same to the police. He has also stated that when the aforesaid incident had taken place there were two more witnesses besides him, namely, Rajender Singh and Dhare. Therefore, according to the prosecution, there were three eye-witnesses to the occurrence.

8. Dhare who was also living somewhere near the alleged place of occurrence came to the place of occurrence after hearing the sound of the bullet. Therefore, Dhare would not have seen the actual occurrence and firing upon the deceased. Therefore, we are left with the evidence of the complainant, Vijender Solanki and Rajender Singh. Both of them have stated that gunshots were fired by the accused persons from close range. The said statement of the eye-witnesses are belied by the medical evidence available on record.

9. It is clearly stated by doctor who had conducted the post mortem examination that all the injuries found on the dead body were ante mortem caused by fire arm project fired from a distant range. He had also stated that there was no blackening, tattooing or charring around the wound, which would have been positively there had the firing taken place from a close range. Besides neither any bullet was recovered from the place of occurrence nor from the dead body of the deceased.

10. The aforesaid medical evidence adduced in this case contradicts the statement given by the eye-witnesses. The said contradictions are very vital and go to the root of the matter and create doubt in respect of the entire prosecution case. It is also disclosed from the records that blood was also found in another place. No explanation is forthcoming from the prosecution as to how blood could be found away from the place of occurrence. Therefore, a doubt is created in respect of the actual location and place of occurrence.

11. In the light of the aforesaid evidence on record, it is held by the learned Additional Sessions Judge that the incident might have taken place somewhere else and after receiving the injuries the deceased came to the place of occurrence by driving the car himself and thereafter he must have died.

12. The said conclusions arrived at by the learned Additional Sessions Judge cannot be said to be in any manner perverse. We are also of the considered opinion that similar conclusions and findings of fact would have to be recorded by us in the light of the evidence that is available on record. There is also no explanation given by the prosecution as to how blood was found in the driver's seat as the alleged three eye-witnesses have categorically stated that the deceased was never put in the driver's seat while bringing him to the Nursing Home. It is stated by them that the deceased was put initially in the other front seat while bringing him to the hospital and thereafter they shifted him to the back seat when his condition was bad. But surprisingly, their wearing apparels were not smeared with blood of the deceased, although they were allegedly holding the deceased.

13. Having gone through the evidence on record we are of the considered opinion that the prosecution story as sought to be made out by the investigating authority appears to be doubtful. The evidence of the eye-witnesses are found to be non-reliable and not trustworthy and on the basis of the same it would not be proper to convict the two respondents herein.

14. Accordingly, we find no infirmity in the judgment passed by the Additional Sessions Judge and we find no merit in this appeal. CRL.A.49/1998 is dismissed. The bail bonds and the sureties shall stand discharged.