Sham Lal And Anr. vs The State
2008 Latest Caselaw 64 Del

JUDGMENT

H.R. Malhotra, J.

1. This appeal arises from the impugned judgment and the order of sentence dated 26.4.1999 rendered by the learned Additional Sessions Judge, convicting appellant no.2, Charan Dass @ Charania, for commission of offence punishable under Section 304 Part II IPC read with Section 160 IPC, awarding sentence to him to undergo RI for a period of three years and also to pay a fine of Rs. 2000/- for the offence committed under Section 304 Part II IPC, and in default of payment of fine, to further undergo SI for three months. A further fine of Rs. 1000/- was awarded to him under Section 160 IPC, and in default of fine, to further undergo SI for one month. The other appellant, Sham Lal, was, however, convicted for offence punishable under Section 308 IPC read with Section 160 IPC. and was awarded sentence of RI for a period of one year and a fine of Rs. 1000/-, and in default thereto, to further undergo SI for one month for offence under Section 308 IPC. He was further sentenced to pay fine of Rs. 1000/- for offence under Section 160 IPC, and in default thereto, to undergo SI for one month.

2. Prosecution story, as set out in the police report under Section 173 Cr.P.C. and also incorporated in the impugned judgment, is that the two appellants had a fight and they started pelting stones and bricks on each other. However, none of them was hurt. Instead, one poor girl, Anju, aged three years, hereinafter referred to as the deceased, who was playing inside her house died of brick injury. Prosecution case is that one of the bricks hurled by Charan Dass hit her as a result of which she sustained injuries and was taken to the hospital by her mother where the doctors declared her brought dead. Therefore, he was prosecuted for offences punishable under Section 304 part II IPC.

3. The investigation commenced and charge-sheet under Section 304 IPC r/w Section 160 IPC against Charan Dass and under Section 308 r/w Section 160 IPC against Sham Lal was filed in the court of the Metropolitan Magistrate, who in turn sent the same to the court of of Session for being tried. The prosecution, in order to bring home the guilt to the appellants, examined as many as 11 witnesses. They included the parents of the deceased, a neighbor, police officials and a doctor who conducted autopsy of the deceased.

4. Having felt aggrieved by the impugned judgment and order of sentence, the appellants have filed the present appeal assailing the impugned judgment of conviction and sentence.

5. I have heard learned Counsel for the appellants and also learned APP for the State. Learned Counsel for the appellants has argued primarily on the ground that the death of the deceased was caused not because of hitting of the brick but as a result of the collapsing of the kachcha wall. It is further argued by the learned Counsel that the mother of the deceased had taken her daughter to the hospital where she gave the alleged history to the effect that her daughter suffered injury because of collapse of wall. Learned Counsel drew my attention to the MLC prepared firstly at the Kalavati Hospital and another MLC Ex.PW8/a of Lady Harding Hospital, where the daughter was later on shifted.

6. Learned Counsel for the appellants further urged that the FIR was lodged at the instance of the mother of the deceased, who had admitted that there was wall collapse, but simultaneously stated that it was collapsed because the two appellants were fighting with each other and hurling bricks as a result of which firstly the brick hit her daughter and then kacha wall collapsed. My attention has also been drawn to the statement of the doctor, who was examined as PW7, to whom a specific question was posed if the injury could occur because of collapsing of the wall, who said that such death could not be ruled out by collapsing of the wall. It is further urged that a false case has been foisted upon the appellants because of enmity between the families of the deceased and the appellants as has come on record, i.e. the statements of PW2 and PW5. What else is urged before me is that PW1, who happens to be a neighbor of the deceased family, testified that he was not able to see the incident as the deceased was playing inside the house. He, however, testified that the wall had collapsed because of the impact of Sham Lal being hit against the wall. It is, thus, finally urged that the death did not occur because of the direct act of the accused persons but because of collapse of the wall, over which the appellants had no control.

7. On the other hand, learned APP for the State urged that there is ample evidence on record indicating that the death of the girl was caused by Charan Dass as there is clear evidence on record indicating that one of the bricks had hit the girl. He has stated so on the strength of testimonies of PW1 and PW7. He, however, urged that though the doctor had deposed that the death could have caused by collapse of wall, but a specific question was put to him if the death could occur because of hitting of the brick as well, to which he answered in affirmative.

8. I have heard the submissions made by learned Counsel for the parties.

9. Though there is evidence on record indicating that there was a fight between Sham Lal and Charan Dass, but the evidence adduced by the prosecution is not of that strong nature where it could be established that the death of the girl had taken place because of the direct act of the accused persons. As seen from the statement of PW2, even she was not very certain if the death had occurred as a result of the act of the appellant, Charan Dass, as she had stated in her statement under Section 161 Cr.P.C. that both, exchange of brick-bat and collapse of wall, had taken place together. What else weighs in my mind favoring the appellants is that at the earliest point of time the mother of the deceased had given the alleged history to the doctor that the death had occurred because of collapse of wall. The statement made at the earliest point by the person who had witnessed the occurrence to the doctor is to be given precedence over the statement made subsequently. At the first instance, she had narrated before the doctor that the death had occurred because of collapse of wall. It has also come on record that there was an enmity between the families of the accused persons and the deceased's family and, therefore, the possibility of false implication could also not be ruled out. The doctor, who was examined as PW7, also testified that this injury could be caused due to collapse of wall.

10. It is the cardinal principle of criminal law that when there are two possibilities one favoring the accused and other favoring the prosecution, the one which favors the accused has to be taken into consideration.

11. Since there remains a doubt whether the death occurred because of injury by the brick or fall of the wall, therefore, the benefit of which has to be given to the appellants.

12. On reading of the testimonies of PW1, PW2 and PW5 coupled with the statement of the medical expert, PW7, it is a case which remains under the arena of doubt and not certainty. Since the suspicion cannot take the place of proof, the learned Additional Sessions Judge, to my mind, erred in convicting the appellants under respective provisions of law, as referred to above. This is certainly a case where the doubt remained as to whether the deceased died because of collapse of wall or because of hitting of the brick and there being such doubt, the benefit of doubt ought to have been given to the appellants.

13. For all these reasons, the impugned judgment of conviction and the order of sentence are set aside, resulting in accepting the appeal.