Ramakant Jha And Anr. vs The State
2009 Latest Caselaw 4984 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                          Date of decision: 04.12.2009



+                         CRL. A. No.289 of 1996




RAMAKANT JHA AND ANR.                                    ...APPELLANTS

                          Through: Mr.Jitender Ratta, Advocate
                                   for Appellant No.1 and
                                   as amicus curiae for
                                   Appellant No.2.


                                  Versus


THE STATE                                         ...RESPONDENT
                          Through:    Mr. Sunil Sharma, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

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                 No
         reported in the Digest?


SANJAY KISHAN KAUL, J. (Oral)

1. A workers agitation at Punj Sons Factory, Kalkaji, New Delhi

went out of hand on 19.05.1990 and the result has been the

death of Suresh Chand @ Suresh Kumar (deceased) on

account of acid burns.

2. On the fateful day of 19.05.1990, at about 8.05 A.M, a

telephonic message was received at PCR from one Mr.Rama

Nand that there was a quarrel going on at the factory

premises. This information was flashed to PS Kalkaji and a

DD entry no.11A was made and the investigation was

entrusted to PW17/SI Lal Singh who reached the factory

premises. At the site, SI Lal Singh found that a car was

parked and the injured persons had been removed to Holy

Family Hospital. SI Lal Singh then went to the hospital and

after seeking permission of the Doctor recorded the

statement ExPW16/A of Vijay Kapoor/PW16 which after

endorsement was sent to the police station for registration

of the case. Vijay Kapoor claimed that he was the Manager

in the factory and an agitation was going on in the factory

for the last six months with the dismissed employees

agitating and holding dharna outside the factory premises.

In the process of agitation, slogans used to be raised

against the management and there was also threat held out

to the officers and owners of the factory. On the date of

incident, he came in the car bearing No.DHG 3576 driven by

himself. S.Mukherjee, Suresh s/o Ram Swaroop (deceased)

and Suresh s/o Ganga Sahai were also seated in the car with

Mr. S.Mukherjee seated next to him in the front while both

Suresh's were sitting on the backseat with the deceased

sitting behind PW16. At about 8 A.M., when the car took a

turn from red light near DTC bus stop, Anand Mai Marg,

P.J.Thomas, Ravi, Manoj, B.M.Lal, Balkar Singh, Ram Kumar

Yadav and Rama Kant along with few others came in front of

the car resulting in stoppage of the car. The windows of the

car were open. These persons thereafter stated that "Saala

Kapoor apne pillo ke saath aa gaya hain, in sab ko jaan se

mar do". Ram Kishan Yadav/Appellant No.2 held in his

hand a container of 5 litres with its mouth cut upon. The

container had acid which was thrown at the occupants of

the car and appellant no.1 assisted appellant no.2 with his

hand. The vehicle was speeded up to the main gate of the

factory where the facts were narrated to Captain Sunil

Sharma/PW10 who was the security In Charge. The

deceased succumbed to his injuries in the hospital and the

investigations were subsequently entrusted to Inspector

M.D.Mehta/PW26. The car was taken into police possession

as also the clothes of the injured. The appellants

surrendered on 26.06.1990 though some of the other

accused were arrested on 20.05.1990. The post mortem

was conducted on the body of the deceased by PW6

Dr.D.M.Bhardwaj who opined that the cause of death was

the shock due to ante mortem burns to the extent of 35 per

cent which could be the result of corrosive substance. In

the course of investigation, accused Ram Kishan

Yadav/appellant no.2 made a disclosure statement that the

acid was purchased by accused B.M.Lal and the container

containing the acid was thrown in the jungle. The shop from

which the acid was purchased was identified and statement

of the shop owner PW 21 was recorded.

3. On completion of investigation, all the accused were sent

for trial. Charges were framed under Section

147/148/307/302/341/149 of IPC. The accused pleaded not

guilty and claimed trial.

4. On completion of trial, all the accused except the appellants

were acquitted as the charge under Sections 147 & 148

could not be established and the prosecution case of

conspiracy could not be proved. Both the appellants were

convicted under Section 302/324/34 of IPC vide Judgment

dated 23.08.1996 and vide order on sentence dated

29.08.1996 sentenced under Section 324/34 to RI for 2

years and to pay a fine of Rs.1,000/ each failing which to

undergo SI for two months. The appellants were also

sentenced under Section 302 of IPC for imprisonment for

life.

5. The appellants have thus preferred the present appeal.

6. The appellants were enlarged on bail in terms of Order

dated 05.10.1999 as modified on 19.11.1999. On the

appeal coming up for hearing, only appellant no.1 appeared

before the Court along with his counsel and all endeavours

to apprehend appellant no.2 proved futile. Since there was

no conflict of interest, counsel or appellant no.1 was

appointed the amicus curiae for appellant no.2 to assist the

court.

7. The case of the prosecution is based primarily on the

testimony of PW3/Subroto Mukherjee, PW9/ Suresh Chand

and PW16/Vijay Kapoor.

8. PW5/Jayanti Prashad, who was the foreman of the company

at the relevant time, was examined to prove the conspiracy

and that the accused persons were members of unlawful

assembly, but the Trial Court has not found his testimony

reliable and as a consequence the Trial Court found that the

charges under Sections 147 & 148 of IPC were not

established which resulted in acquittal of the co-accused

P.J.Thomas, Ravi, B.N.Lal and Balkar Singh. The State has

not filed any appeal against the acquittal of the co-accused

and thus have accepted the finding and the lack of evidence

to establish the theory of unlawful assembly and conspiracy.

9. The testimony of PW3/Subroto Mukherjee shows that he was

sitting along with PW16/Vijay Kapoor in the front when

appellant no.2 with the assistance of appellant no.1 threw

acid in the car from its left side back seat window behind

driver's seat. The assistance attributed to appellant no.1 is

that he was supporting the arm of appellant no.2 when the

acid was thrown.

10. The testimony of PW16 is also to the same effect and

he has supported the statement recorded before the police

which had resulted in the registration of FIR No.158/1990

being ExPW16/A. He has further deposed about there

being even past incidents of stone throwing and expressed

ignorance about chemical being used in the factory. We

may note that the chemical dealer PW21/Tarlochan Singh

could neither name or identify the person who purchased

the acid from his shop on 18.05.1990. In fact, he resiled

from his statement made earlier to the police. The

testimony of PW9/Suresh Chand, to some extent, is

divergent as he has deposed that the window panes of the

car were broken while the other witnesses PW3 and PW16

(which is also the case of the prosecution) have deposed

that the window panes were open. The testimony of these

three witnesses is a first-hand account of what transpired at

site.

11. The role of appellant no.2 in throwing of acid emerges

clearly. A five-litre can, with acid in it, was held by

appellant no.2 and was thrown at the occupants of the car

which caused injuries to others but resulted in the

unfortunate demise of the deceased. The cause of death is

established by the examination of the doctor who carried

out the post mortem.

12. We may note that the learned counsel for the

appellants seek to contend that the cause of death has not

been fully established as MLC has not been proved by

examining the doctor who recorded the MLC. The MLC has

been proved by the record clerk. We are unable to agree

with the submission of learned counsel for the appellants on

this account as the record clerk has deposed that the

concerned doctor was no more available in the hospital and

could not be traced out and further the doctor who

conducted the post mortem has proved the post mortem

report. It is nobody's case that the agitation was not going

on or that car occupied by the occupants had not arrived at

site or that acid was not thrown, but the only plea is that the

appellants were not responsible for throwing the acid.

13. Learned counsel for the appellants further seeks to

contend that the witnesses who have testified against the

appellants are interested witnesses and no independent

witness has been examined.

14. Once again the problem of locating independent

witnesses who are unwilling to join investigation is an

aspect noted by the Supreme Court in Sarwan Singh v

State of Punjab in the following terms:

"As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad and Anr. v. State (Delhi Admn.) (2002) 2 SCC 646, wherein this Court in paragraph 12 observed:

"12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournment in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State U.P. v.Anil Singh (1988 Supp SCC

686), this Court observed:(SC pp. 691-92, para 15)

"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."

The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available - if they are so, the prosecution should be able to prove the case with their assistance.

Coming to the contextual facts once again, while it is true that there is no independent witness but the evidence available on record does inspire confidence and the appellant has not been able to shake the credibility of the eye-witnesses. There is not even any material contradiction in the case of the prosecution."

15. If the ground reality at the site is taken into account,

the area was occupied by the agitating workers who can

hardly be expected to depose against their colleagues who

were co-workmen and were also agitating. The three

witnesses who have deposed were occupants of the car who

suffered injuries and were victims of the situation. Thus

mere presence at the time of incident cannot be doubted

from the evidence. The role played by appellant no.2

clearly emerges that it was he who carried the can, tilted it

and threw it in an arc inside the car causing injuries and this

has been the basis of conviction by the Trial Court.

16. We find it difficult to doubt the testimonies of these

three witnesses insofar as the role of appellant no.2 is

concerned and thus sustain the order on conviction and

sentence against appellant no.2.

17. Now coming to the role of appellant no.1, the theory of

conspiracy has not been accepted by the Trial Court which

resulted in the acquittal of four other co-accused. The

prosecution has also accepted the said finding. The only

aspect thus to be examined is the role of appellant no.1 at

the site as elucidated by these three witnesses. If the

testimony of PW3, PW9 and PW16 is examined, it is found

that all that has been stated is that the appellant no.1

supported the arm of appellant no.2. Appellant no.2 is the

one who was holding the can, took it to the mouth of car

window and sprayed it inside on the occupants of the car.

As to what could be the assistance in such a situation by

appellant no.1 in supporting the arm of appellant no.2

cannot be clearly deciphered. The ground reality is also

that there were a large number of workmen surrounding the

car. There is bound to be pushing and jostling in such a

situation. In these circumstances, an accidental touch by

appellant no.1 to the arm of appellant no.2 seems to be a

grave possibility.

18. We are thus of the view that unless a clear and

defined role can be assigned to appellant no.1 which may

lead to an inference of appellant no.1 sharing a common

intention with appellant no.2, he cannot be convicted along

with appellant no.2 with the aid of Section 34 of IPC. Such a

clear role has not emerged as the witnesses have only

deposed to what they claimed as support given to the arm

of appellant no.2 by appellant no.1. The case against

appellant no.1 cannot be said to be proved beyond

reasonable doubt. Thus, taking into consideration the

testimonies of all the witnesses and the role said to be

assigned by them to appellant no.1, we are of the view that

appellant no.1 is entitled to benefit of doubt.

19. The appeal is thus allowed qua appellant no.1 giving

him the benefit of doubt while sustaining the conviction and

sentence of appellant no.2. The bond and surety of

appellant no.1 stand discharged. The Trial Court is directed

to take necessary steps for apprehending the appellant no.2

so that he can serve the remaining sentence.

SANJAY KISHAN KAUL, J.

December 04, 2009                                  AJIT BHARIHOKE, J.
dm