Roop Chand & Ors. vs State
2009 Latest Caselaw 4960 Del

                HIGH COURT OF DELHI: NEW DELHI
+              CRL. APPEAL NO. 143/2001
%              Judgment reserved on: 30th November, 2009
               Judgment delivered on: 3rd December, 2009

ROOP CHAND & ORS.                              ..... Appellants
                             Through:    Mr. Inderjit Sharma, Adv.

                             Versus

STATE                                                .....Respondent
                             Through:    Mr. M.P. Singh, APP

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?            No

       2. To be referred to Reporter or not?             No

       3. Whether the judgment should be
          reported in the Digest?                        No



A.K. PATHAK, J.

1. Appellants Naresh Kumar, Rajinder Kumar @ Babloo and

Shahib Singh had been convicted under Section 323/304 Part I

of the Indian Penal Code (for short hereinafter referred to as

"IPC") read with Section 34 IPC by the learned Additional

Sessions Judge, Delhi (for short hereinafter referred to as

"ASJ"). They have been sentenced to face rigorous

imprisonment for a period of five years and to pay fine of Rs.

2,000/- each under Section 304 Part I/34 IPC and in default of

payment of fine, to undergo further rigorous imprisonment for

a period of four months each; sentenced to pay fine of Rs.

10,000/- each under Sections 323/34 IPC and in default of

payment of fine, to undergo rigorous imprisonment for a period

of two months.

2. Appellant Roop Chand was also convicted along with

appellants Naresh Kumar, Rajinder Kumar @ Babloo and

Shahib Singh under the aforesaid provisions and was awarded

the same sentence. However, appeal against Roop Chand

stood abated vide order dated 16th November, 2009 since he

died on 1st November, 2006.

3. In brief, prosecution case, as set out in the charge sheet

under Section 173 of Code of Criminal Procedure (for short

hereinafter referred to as "Cr.P.C."), was that, deceased

Darshan Singh was the neighbour of the appellants. About one

year prior to the incident, Roop Chand had taken loan of Rs.

4,000/- from the deceased. When deceased asked Roop Chand

to return the loan, he quarreled with him. On 8th August, 1996

at about 4:30 pm deceased was present in his house along

with his wife Smt. Saraswati, daughter Prem Lata and her

daughter's husband Pukh Raj when Roop Chand along with his

sons Naresh Kumar, Kishan and Babloo came there and started

abusing the deceased. They forcibly dragged the deceased

from the house and started beating him in the gali. In the

meanwhile, Shahib Singh, Sat Pal @ Satte and Bal Kishan came

there carrying dandas in their hands and started beating the

deceased. Smt. Saraswati along with her daughter Prem Lata

and son-in-law Pukh Raj tried to save the deceased at which

they also received beatings by the gang. Prem Lata and her

husband Pukh Raj ran away from there. In the meanwhile,

Smt. Angoori @ Bhani wife of Roop Chand, her daughter

Lakshmi as well as her daughter-in-law Praveen also came to

the spot and started instigating their relatives (assailants) to

eliminate the deceased. Roop Chand caught hold of deceased

from his hair, while Naresh, Sri Kishan and Babloo caught hold

of him by his hands and Shahib Singh, Bal Kishan @ Bale and

Satte gave danda blows to the deceased. Naresh, Bal Kishan

and Babloo beat the deceased with fist and kicks. Smt.

Angoori @ Bhani, Lakshmi and Praveen also gave fist blows

and kicks to the deceased. When Smt. Saraswati tried to save

her husband she also received beatings in the hands of above

mentioned assailants. A crowd gathered there and the

deceased had also become unconscious. In the meanwhile,

Police also arrived at the spot and on seeing the Police

personnel, accused persons fled from there. Police removed

Smt. Saraswati and the deceased to Deen Dayal Upadhyay

Hospital (for short hereinafter referred to as "DDU"), where

deceased was declared as "brought dead".

4. D.D. No. 44 B was recorded in the Police Station Vikas

Puri regarding the incident and thereafter given to SI Pyare Lal

(hereinafter referred to as Investigating Officer). Investigating

Officer recorded statement of Smt. Saraswati wherein she

narrated the incident in the manner, as has been described in

the para No. 3 hereinabove.

5. Pursuant to the statement of Smt. Saraswati, FIR No.

434/96 under Sections 302/323/34 IPC was registered by Police

Station Vikas Puri. Roop Chand, Shahib Singh, Naresh Kumar

and Sri Kishan were arrested on 9 th August, 1996. Rajinder

Kumar @ Babloo was arrested on 27th August, 1996. Site plan

was prepared. Post mortem of the dead body was conducted

on 9th August, 1996 in the mortuary of D.D.U. hospital. After

the post mortem, dead body was handed over to the family of

the deceased.

6. Accused Bal Kishan @ Bale and Sat Pal @ Satte got

recovered a dandas from their residential houses, pursuant to

their disclosure statements, on 18th October, 1996. Dandas

were taken in possession and sealed.

7. After completion of investigation, charge-sheet under

Section 173 Cr.P.C. was filed in the court of learned

Metropolitan Magistrate, who took cognizance of the offence

and committed the case to the court of Sessions, as offence

under Section 304 IPC was exclusively triable by the court of

Sessions.

8. Charges under Section 304 Part I IPC read with Section 34

IPC as well as under Sections 323/34 IPC were framed against

the appellants as well as other accused persons on 11th

February, 1996 to which they pleaded not guilty and claimed

trial.

9. Prosecution examined seventeen witnesses to prove its

case. After prosecution closed evidence, statements under

Section 313 Cr.P.C. of the appellants as well as other accused

persons were recorded on 12th December, 2000 wherein entire

incriminating evidence, which had come on record, was put to

them. Appellants denied their complicity in the crime and

claimed themselves to be innocent. They stated that they had

been falsely implicated. Appellants did not lead any evidence

in their defence.

10. On the same set of evidence Bal Kishan @ Bale, Sri

Kishan, Lakshmi, Praveen and Angoori @ Bhani were acquitted.

Due to the shifting stand taken by PW4 at different stages

learned ASJ did not find testimony of eye witness Smt.

Saraswati sufficient to implicate these persons.

11. I have heard the learned counsel for the appellants and

have perused the entire material on record including the

testimony of eye witnesses. As per the prosecution, PW4

Saraswati, PW5 Smt. Sita, PW6 Prem Lata and PW7 Pukh Raj

had witnessed the incident. I find that, PW5 to PW7 did not

support the prosecution case at all. They were declared hostile

and were cross examined at length by the learned Additional

Public Prosecutor (for short hereinafter referred to "APP") for

the State, but nothing could be elicited in their cross

examination.

12. PW5 Smt. Sitaj, sister of the deceased, categorically

deposed that nothing had happened in her presence and she

did not make any statement before the Police. In her cross

examination she denied that she had witnessed the incident.

She denied her statement under Section 161 Cr.P.C. recorded

by the Investigating Officer in toto. PW6 Prem Lata is daughter

of the deceased; whereas PW7 Pukh Raj is son-in-law of the

deceased. As per the prosecution, they had witnessed the

incident. In fact, PW4 Smt. Saraswati, in the FIR, had stated

that PW6 Prem Lata and PW7 Pukh Raj had come to her house

on the day of incident and were present when deceased was

pulled out from his house and was given beatings by the

appellants. And other accused persons. However, PW6 has

categorically deposed that nothing had happened in her

presence; none of the accused had caused injuries to her

father in her presence. She categorically denied having been

made any statement before the Police implicating the

appellants or their associates.

13. Thus it is clear that only testimony of PW4 Saraswati was

available to the learned ASJ for convicting the appellants.

Learned ASJ observed in part 20 of the judgment that PW4 had

materially deviated from her statement Ex. PW4/A made to the

Police, on the basis whereof FIR in question was registered.

She had fully exonerated Bal Kishan @ Bale and Sri Kishan of

having given beatings to the deceased. In fact, while deposing

in the court, she termed them as rescuers of her husband.

Learned ASJ further observed that she could not be termed as

a wholly reliable witness and her testimony required

independent corroboration in material particulars to base

conviction of any of the accused. In spite of making these

observations, learned ASJ found the testimony of PW4 trust

worthy as far as relating to the role played by the appellants in

causing fatal injuries to the deceased. As per the learned ASJ,

PW11 Dr. Komal Singh, who conducted the post mortem of the

deceased, as also PW14 J.C. Vashisht, Record Clerk of the

D.D.U. hospital corroborated Smt. Saraswati's testimony.

14. I am at a loss to understand as to in what manner the

testimony of PW11 and PW14 corroborates the statement of

PW4 Saraswati with regard to role played by the appellants in

causing the injuries to deceased Darshan Singh. PW11 had

proved the post mortem report and his testimony only goes to

show that deceased Darshan Singh had received certain

injuries and he died due to injuries in spleen and liver which

led to instant hemorrhage resulting into immediate shock and

ultimately death. MLC of Smt. Saraswati also shows that she

had sustained certain injuries. However, from the testimony of

PW11 and PW14, it cannot be said that it in any manner

whatsoever corroborates PW4, to the extent that the injuries

were caused by the appellants. In my view, learned ASJ has

committed an error in arriving at a conclusion that the medical

evidence in the shape of PW11 and PW14 corroborates PW4

Smt. Saraswati with regard to the role played by the

appellants. Their testimonies do not suggest that injuries were

caused by the appellants.

15. I have carefully perused the testimony of PW4 Smt.

Saraswati and I find it to be wholly untrustworthy and

unreliable. She had taken shifting stand at different stages. In

the FIR, she stated that at about 4:30 pm on 8 th August, 1996

Roop Chand, Bal Kishan @ Bale, Naresh and Sri Krishan came

to her house and started abusing the deceased. They dragged

her husband in the gali and gave beatings to him. In the

meanwhile, Shahib Singh, Sat Pal @ Sattee and Bal Kishan @

Bale also came there with dandas in their hands and they also

gave beatings to the deceased. When her daughter Prem Lata,

daughter's husband Pukh Raj and herself tried to save the

deceased, they were also given beatings. Thereafter, Smt.

Angoori @ Bhani, Lakshmi and Praveen also came there and

not only exhorted the other assailants to finish the deceased

Darshan Singh but also gave beatings by fist blows and kicks.

However, while deposing in the court, she has given a different

version. In the court, she deposed that Roop Chand, Rajinder

Kumar @ Babloo, Naresh and Smt. Angoori @ Bhani and

Shahib Singh came to her house and at that time they were

having dandas. They dragged the deceased outside the house

and gave beatings. Subsequently, Sat Pal @ Satte, Kishan and

Bal Kishan @ Bale also came there and started beating the

deceased with dandas. When she tried to rescue her husband

she was also given beatings. Her this version is different than

that contained in the FIR and creates a serious doubt about the

veracity of her version. In the FIR, she had stated that her

daughter Prem Lata and her son-in-law Pukh Raj were also

present in the house when assailants came there, however, in

her cross examination she deposed that her daughter and son-

in-law came there after her husband's death. Her this version

is also materially different than her statement before the

Police.

16. In her statement before the Police she stated that Bal

Kishan @ Bale and Kishan gave beatings to her husband by

dandas. However, in her cross examination, she deposed that

Bal Kishan @ Bale and Kishan had not assaulted her husband;

rather they tried to rescue her husband. Her this statement in

cross examination is totally at variance with her statement in

the FIR. For this reason she was even cross examined by the

APP for the State regarding the role played by the Bal Kishan @

Bale and Sri Kishan. However, she maintained stand that Bal

Kishan @ Bale and Siri Kishan did not give beatings to her

husband. She denied that she had made a statement before

the Police that Bal Kishan @ Bale and Sri Kishan had assaulted

her husband with dandas. She deposed that their names were

given in the FIR at the behest of Police officials. Her this

statement shows that FIR is based on the tutored statement of

the complainant.

17. It is pertinent to mention that, as per the prosecution, Bal

Kishan @ Bale got recovered the danda used at the time of

commission of offence, pursuant to his disclosure statement,

however, PW4 in her cross examination, categorically deposed

that Bale was not having any danda with him nor he assaulted

the deceased rather Bale tried to rescue her husband. Her this

statement is contrary to the prosecution case as set up in the

FIR. Recovery of dandas at the instance of Bal Kishan @ Bale,

in no manner, lends credence to the deposition of PW4.

18. In her deposition in the court she stated that her

daughter and son-in-law were not present in the house at the

time of incident though in her statement before the Police she

had stated that they were not only present but were also given

beatings by the appellants and their associates, when they

tried to save the deceased. However, in her statement before

the court she deposed that she did not make any such

statement.

19. Testimony of PW4 regarding role played by the

appellants is also not consistent with the prosecution case.

Discrepancies, as pointed out above in the statement of PW4,

by no standard, can be termed as minor. In my view, the

shifting stand taken by the PW4 at different stages, which is

materially at variance with the prosecution case, makes PW4

Saraswati wholly untrustworthy and unreliable witness and it

would not be safe to base the conviction only on her sole

testimony.

20. It is true that conviction can be based on the testimony of

a single eye witness provided such witness passes the test of

reliability. So long as the sole eye witness is a wholly reliable

witness conviction can be based on his testimony alone

without looking for some independent corroboration. However,

in this case the sole eye witness, in my view, is wholly

unreliable and her testimony is liable to be discarded in toto.

21. I am of the opinion that the prosecution had failed to

place any cogent evidence on record to prove beyond shadow

of reasonable doubt that the appellants had caused injuries on

the person of deceased including injury to the spleen and liver,

resulting in his unfortunate death.

22. In the light of above discussions, I conclude that the

learned ASJ committed an error by basing the conviction of the

appellants on the sole testimony of PW4, who, as already

stated above, is totally unreliable and untrustworthy.

23. Accordingly, I allow this appeal and set aside the

conviction of the appellant under Section 304 Part I IPC as well

as under Sections 323/34 IPC. Consequence is that order on

sentence also goes.

24. Appellants are acquitted. Their bail bonds and surety

bonds are discharged.

A.K. PATHAK, J.

December 03, 2009 ga