State (Delhi Admn.) vs Ashok Kumar
2005 Latest Caselaw 1574 Del

JUDGMENT

Manju Goel, J.

1. The present appeal is directed against the judgment of the Additional Sessions Judge, Delhi dated 7th August, 1982. The present appeal was preferred in the year 1983 but has remained pending so far have been taken up for disposal as part of a concerted effort to take up old matters.

2. The respondent-Ashok Kumar was accused of the offence of murder of one Neeraj. As per the prosecution case, Neeraj who had lent money to the respondent had demanded his money back which caused a quarrel and during this quarrel respondent took out a knife from right side pocket of his pant and gave a blow on the left thigh/abdomen of Neeraj. The spot was Mata Wali Gali near Katra Khushal Rai in Chandni Chowk. The time was about 8.00 pm. The prosecution named two other persons, namely Chhotey and Ravinder who were attributed roles of securing victim when the knife blow was given by the respondent. All the three accused were acquitted by the impugned judgment. On the appeal being preferred by the State, the same was admitted qua the present respondent.

3. Learned counsel for the parties have taken us through the record of the case as well as through the impugned judgment. The prosecution relied upon three eye witnesses who had produced as PW-3, PW-4 and PW-5. PW-3 deposes that he reached the spot after the incident had happened and the crowd had gathered there. He and Bishan Sarup Pandey took the injured in a cycle rikshaw to the Irwin Hospital. The injured was unconscious and when he was brought to the hospital he was declared dead. Bishan Sarup Pandey is PW-5 who is seller of ready made garments deposes that he heard the altercation between the respondent and the deceased from some distance as he happened to be there on his way back home with bundles of clothes with him and his employee Ved Parkash. He says that as he approached the spot, he heard the deceased demanding money from the respondent and the respondent replied to the deceased that he would return the money right then and took out a knife and gave the blow. This witness also claims to have raised an alarm and, thereafter, handed over the bundle of clothes to Ved Parkash with instructions to proceed to the godown and lifted the deceased and walked about 30 paces when he met PW-3 and together they brought the deceased to the J.P.N.Hospital. Ved Parkash is PW-2. He corroborates PW-5 and says that while Bishan Sarup Pandey and Pradeep Kumar took the injured to the hospital he left for the godown.

4. Despite the two eye witnesses, the case ended in an acquittal as the trial court disbelieved both Bishan Sarup Pandey and Ved Parkash. Bishan Sarup Pandey was himself involved in several cases and there were occasions when he was taken in custody by the police and was prosecuted. In his cross examination he admits that he was challaned three or four times by P.S. Kotwali and that he had been kept in police lock up in some of those cases. He further says that during Emergency days, he remained in the police custody for about seven days although he does not know for what offence he had been arrested. He avoids the suggestion that he was arrested on account of being a habitual offender. He says that the place where he sells his goods is at a distance of two minutes walk from P.S. Kotwali but he denies the suggestion that the police officers of P.S. Kotwali keeps troubling him as he sells his goods on the pavement and that in order to save himself from the harassment of the police he has agreed to become a witness for them. He expresses ignorance whether he was a prosecution witness in another case of the same police station relating to the robbery against Pramod Kumar and Satish Kumar. On account of such antecedents of witness Bishan Sarup Pandey, the trial court declined to give any credence to his testimony.

5. Another reason for declining to award credence to the testimony of this witness is the failure of the police to obtain the shirt of the witness. The police had taken in possession the shirt of PW-3 as the shirt had blood stains on it. It was PW-5, if his version has to be believed, who lifted the injured and walked around 30 paces before he met PW-3. In this situation, it was his clothes which should have received more blood stains than PW-3. Why the shirt of PW-3 was preferred over the clothes of PW-5 has not been explained by the prosecution. A very important circumstantial evidence has, thus, been omitted by the prosecution. The doctors of the hospital where the deceased was brought have not been examined to prove who brought the deceased to the hospital. Although an OPD Card was seized by the investigation but no attempt has been made to prove the same.

6. The trial court cannot be faulted for declining to lay any credence on the testimony of Bishan Sarup Pandey. His past record along with his business of selling clothes on the pavement to the displeasure of the police does give rise to a suspicion that he could agree to oblige the police. In the present case, there is nothing substantial to prove that he was present at the very moment when the offence took place. The absence of seizure of his clothes do suggest that his clothes did not have any blood stains. Therefore, his story that he had lifted the deceased in his arms and carried him for nearly 30 paces before he could place him in the cycle rikshaw cannot be believed.

7. PW-2 Ved Parkash, the other eye witness set up his prosecution, as stated earlier, corroborates PW-5 but Ved Parkash is none other than the employee of Bishan Sarup Pandey. The trial court has given cogent reasons for disbelieving Ved Parkash. In the first place, both Bishan Sarup Pandey and Ved Parkash should have given the name of the assailant to the crowd that had collected there. Ved Parkash claims to have known the deceased and therefore his natural conduct should have been to immediately go to the house of the deceased and inform his family of the incident. Ved Parkash did nothing of the kind. It also transpires in his cross examination that he was also being cited as a witness by the police in some cases. Being the employee of Bishan Sarup Pandey, his interest cannot be very different from that of Bishan Sarup Pandey. Bishan Sarup Pandey himself being a discredited witness and Ved Parkash himself also being a frequently cited witness of the police, the Court has to take the testimony of these two witnesses with sufficient caution.

8. The offence under Section 302 of the Indian Penal Code for which the respondent was tried is punishable with death or imprisonment for life. Such being the nature of offence, the standard of proof also has to be high and beyond any challenge or proof. In our opinion, the prosecution has failed to discharge its duty of proving the guilt of the accused by an unimpeachable evidence. In our opinion, the respondent is entitled to the benefit of doubt and is entitled to be so acquitted. The appeal is accordingly dismissed.