Delhi High Court

Raj Pal vs State on 17 June, 2009

Author: G. S. Sistani

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
+                            CRL.A.NO.240/2009


                             Date of Pronouncement 17th June, 2009


# SHRI RAJ PAL                                     ....... Appellant
                             Through:    Mr.Dushyant Chaudhary, Adv.

                             Versus

STATE (NCT OF DELHI) & ORS.                         ....... Respondents

Through: Mr.Lovkesh Sawhney, APP for State

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

1. Whether reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

G.S. SISTANI, J:

1. Present appeal is directed against the judgment dated

13.12.2008 and order on Sentence dated 18.12.2008 passed by

the learned Additional Sessions Judge in C.C.No.3214/4, under

sections 308/426/511/34 IPC, P.S. Seelam Pur, Delhi, by virtue

of which the appellant has been convicted and ordered to be

released on probation for a period of one year on his furnishing

a personal bond in the sum of Rs.10,000/- with one surety of the

like amount with an undertaking of good behaviour.

2. The brief facts of this case as noticed by learned Additional

Sessions Judge are that one Jagdish was residing in jhuggi 506

Gurudwara Road, New Seelampur, Delhi. He was in possession

of a kiosk in front of the jhuggi. One Rohtash also laid claim

over this kiosk which resulted in ill-will between Rohtash and his

family on the one hand and Jagdish and his family on the other,

over possession of that kiosk. On 20.10.2004 at about 1:15

p.m. Rohtash and his wife Sona tried to take possession of the

said kiosk. Appellant, Rajpal helped them in their activities.

Dharambir and his mother, Savitri objected which resulted in an

altercation between them. In the said altercation, Dharambir,

sustained injuries over his head. The appellant came for help of

Rohtash and his wife Sona. Jagdish was informed about the

incident, who reached at the spot and removed Dharambir to

the Police Station. At the police station he was advised to

remove his son to the hospital for treatment, Accordingly,

Dharambir was taken to GTB Hospital, Shahdara. He was

treated by Dr.Mayank Dabral and a MLC was prepared. ASI Rati

Ram reached the hospital but opted not to initiate any action in

the matter. Mr.Jagdish thereafter approached SHO Police

Station Seelampur, but no action was initiated on his complaint.

He approached the DCP of the area on 23.10.2004, but in vain,

ultimately he filed a complaint before the concerned Magistrate

on 5.11.2004. The Magistrate took cognizance of the

complaint. He examined Mr.Dharambir, Smt. Savitri,

Mr.Subhash, Mr.Jagdish and Sushil Kumar, record clerk under

section 200 of the Cr.P.C. and after hearing the complainant,

accused were summoned for offences punishable under

sections 308, 452 and 506 IPC. The matter was thereafter

committed to the Court of Sessions on 12.7.2007. To

substantiate the charge, the prosecution examined seven

witnesses, however, no evidence was led by the defence. Out

of accused persons, i.e. Rohtash, Sona and Rajpal, only Rajpal

has preferred the present appeal.

3. It is contended by learned counsel for the appellant that the

judgment and order of the learned Additional Sessions Judge is

contrary to law and also against the evidence and material

available on the record and thus the same has resulted in gross

miscarriage of justice. He also submitted that the judgment

and order is full of conjectures and surmises as the appellant

has been convicted and sentenced without any substantive and

corroborative evidence of any eye witness or any other

independent witness. It is also urged before this Court that on

the basis of the sole evidence of Dharambir, the victim, which

has been disbelieved, the learned Additional Sessions Judge has

acquitted the accused of the charge for the offence punishable

under sections 426 read with section 511 and 452 of the IPC.

However, for the offence under section 308 read with section 34

IPC, the learned Additional Sessions Judge has relied upon the

evidence of Dharambir and convicted the accused persons

including the appellant.

4. Learned counsel for the appellant contended that there are

material contradictions between the evidence recorded under

section 200 Cr.P.C. and the evidence recorded in Court.

Learned counsel further submitted that the appellant is a

complete stranger to the incident as he has no concern either

with Mr.Jagdish and his family and /or with Mr.Rohtash and his

family.

5. Learned counsel for the appellant submits that the appellant

has been falsely implicated in this case as the appellant was

neither present at the spot nor he is in any way related either to

the complainants or to the accused persons and has only been

named at the behest of one Sh. S.S. Singh, Advocate, who had

forced the victim to give evidence and include his name.

Counsel further submits that the first complaint dated

23.10.2004 filed by the complainants before the Deputy

Commissioner of Police would show that the appellant was not

named. Counsel also submits that even during the evidence

recorded in the Court, the victim, PW-3, Dharambir, was not

able to identify the appellant by name. Counsel next submits

that the learned Trial Court did not rely on the evidence of the

father of the victim as he was not witness to the incident but

was only a witness of removing the inured to the hospital.

Moreover, the evidence of PW-4, brother of the victim was also

not relied upon. Counsel lastly submits that no specific role has

been attributed to the appellant and injuries were not caused

by the appellant to Dharambir.

6. While opposing the present appeal, learned counsel for the

State submits that the victim had duly identified the appellant

as well as he was part of the group of persons who came,

prepared with Lathis and iron rods to demolish the kiosk.

7. It is contended by the learned counsel that simply by saying

that the appellant has been falsely implicated at the instance of

Sh. S.S. Singh, Advocate, is no ground to allow the appeal. The

same cannot be maintainable as no suggestions were put to the

victim during his cross-examination by the appellant. Learned

counsel for the appellant, however, submits that this stand was

taken by the appellant in the statement recorded under Section

313 of the Cr.P.C. and also the questions had been put to the

father of the victim. Learned counsel for the appellant submits

that the present appeal is liable to be allowed.

8. I have heard learned counsel for the parties, who have taken

me through the record of the case. The incident in the present

case took place on 20.10.2004. It is stated that PW-1,

Mr.Jagdish (father of Dharambir), is the sole owner of the kiosk.

The alleged altercation took place between the two factions on

account of possession of the kiosk. The learned ASJ has rightly

observed that this witness (PW-1) was not present at the time

of the incident and had reached the spot only after the incident

was over. PW-1 had removed his son Dharambir to the Police

Station and thereafter to the GTB Hospital. He had lodged a

report dated 23.10.2004 with the DCP. In this report, Mr.Jagdish

had named Rohtash, his wife (Sona) as well as their son-in-law

(Sunil) along with certain unknown persons. He had

categorically stated that Rohtash, his wife and their son-in-law

had threatened to murder his sons and his wife. He further

stated that Rohtash and his wife (Sona) had caught hold of

Dharambir and Sunil gave two lathi blows on his head, as a

result of which blood started oozing out. When his son Subhash

and his wife tried to save his second son (Dharabmir) from their

clutches, then Rohtash and his wife (Sona) and their son-in-law

(Sunil) rushed towards them in order to attack them with lathis

and iron rods. But his wife and son in order to save their lives

ran inside their jhuggi. In this complaint the present appellant,

Rajpal, has not been named.

9. It is pertinent to note that in the complaint filed by Mr.Jagdish

under section 200 of the Code of Criminal Procedure, this

appellant has been named. The prosecution had examined PW-

4, Subhash (son of Mr.Jagdish). However, his evidence was not

considered to be reliable or trustworthy by the learned

Additional Sessions Judge. The prosecution had also examined

one Tejender Dutta, PW-5, who was stated to be an eye witness,

but on close scrutiny and examination of his evidence, the same

was found to be unreliable and the learned trial Court has

observed that the story projected by this witness is concocted

and he has fabricated facts with a view to present a convenient

story. PW-6, Ms.Devki, is the sister of Jagdish. A careful

reading of her evidence would also show that she was not

present at the spot at the time of the incident, as she had

stated that on 20.10.2004, she had gone to her job as she

works as a maid servant in the house of one Dr.Virender Jain

and reported home at 3:00 p.m. She found the kiosk, which

was outside the house of Jagdish in a broken condition and

further deposed that Savitri narrated facts to her. Thus the

evidence of PW-6 cannot be relied upon.

10. Out of seven witnesses, who have been examined by the

prosecution, the evidence of two witnesses has been found to

be unreliable and untrustworthy. PW-2, is the doctor, who has

proved the MLC. PW-1, Jagdish was admittedly not present at

the spot at the time of the incident and the same holds true for

PW-6 Smt.Devki. This leaves only two witnesses i.e. victim,

Dharambir, PW-3 and his mother Smt.Savitri, PW-7.

11. Dharmbir PW-3 is the victim who sustained head injuries and

PW-7, Savitri, mother of Dharambir are the witnesses and on

the basis of their evidence the trail court has convicted the

appellant. The evidence of these two witnesses is of utmost

importance and Dharambir is the star witness of the

prosecution. It may be noticed that Dharambir had sustained

head injuries which finds corroboration in the MLC Ex.PW-2/A,

which would show that on account of these injuries he was

removed to the GTB hospital. PW-3, Dharambir had stated in

his examination that on 20.10.2004 at about 1:00 p.m. he was

working in his kiosk / shop which is near to his house. He

identified Rohtash and Sona as his neighbours. He deposed

that third accused is their accomplice (appellant herein), whose

name was not known to him. Dharambir further stated that all

the three accused persons along with their associates, namely,

Gunjan and Sunil came to the kiosk, duly armed with lathis and

iron rods with one or two other unknown persons and started

demolishing the kiosk. Dharambir resisted at this juncture.

Thereafter, Rohtash and Sona caught hold of him and Sunil

gave a lathi blow on his head. He further deposed that Sunil is

not present in the Court today. PW-3 stated that he started

bleeding from his head and in the meantime his mother (Savitri)

and brother (Subhash) reached to save him. Accused persons

assaulted them as well. In the cross-examination this witness

has also reiterated that Rohtash had caught hold of him from

his left shoulder and Sona had caught hold of him from the right

shoulder.

12. I have carefully perused the evidence of PW-3, Dharambir, the

victim. A bare reading of his evidence would show that he in

his evidence has neither named this appellant, Rajpal, as the

person, who attacked him or who had caught hold of him while

lathi blows were given over his head. Dharambir has

categorically stated that all the accused persons had come to

the spot armed with lathis and iron rods and they started

demolishing the kiosks, however, Rohtash and Sona had caught

hold of him and Sunil gave lathi blows over his head. He has

not named the appellant as the person, who inflicted the blows

over his head. Dharambir further deposes that after he was hit,

his mother and brother reached there to save him. The

accused persons assaulted them as well and then his mother

and brother ran towards the house to save themselves. Thus,

nowhere does PW-3, Dharambir, mentions the name of the

appellant, as the person who assaulted him. At this juncture it

would be appropriate to reproduce the evidence of Smt. Savitri,

PW-7:

"Accused persons, are known to me. I identify them. Accused persons are my neighbours. A kiosk was installed in front of my Jhuggi. Accused persons were laying claim on that wooden kiosk. On 20.02.2004, at about 1 or 2 p.m., accused persons, came there to demolish my kiosk. Again said I am not certain about the date. In that month Nav Durga festival was to be celebrated, when this incident occurred. Accused persons, started demolishing out kiosk. When we people objected, then they assaulted my son Dharambir. Accused

persons were armed with lathies and clubs. They wielded blow over the head of Dharambir. Accused Rohtash had wielded blow over the head of my son. He was overpowered by Sunil and Sona. Sunil is not present before the court. Raj Pal was not present at the spot at that time."

13. As per Smt.Savitri, the accused persons started demolishing the

kiosk and when an objection was raised they assaulted her son,

Dharambir and accused Rohtash has wielded a blow over the

head of his son. She has categorically stated that Rajpal was

not present at the spot at that time.

14. It would also be useful to take into consideration the

observations made by the Hon'ble Supreme Court of India as far

back as in the year 1957 in the case of Swarn Singh Ratan

Singh Vs. State of Punjab, AIR 1957 SC 637 that in criminal

cases mere suspicion, however, strong, cannot take place of

proof. The court must also take into consideration that an

accused is presumed to be innocent till charges against him are

proved beyond reasonable doubt. Mere suspicion, however,

strong it may be, cannot take the place of legal proof.

15. As a final court of facts, the High Court is entitled to re-appraise

the evidence and arrive at its own independent conclusion as to

the guilt or innocence of the accused. The Court must thus be

satisfied that the case of the prosecution is substantially true

and that the guilt of the appellant has been established beyond

reasonable doubt. It is only when the prosecution has proved its

case beyond reasonable doubt that conviction cannot be

disturbed in appeal. It will be useful to reproduce the

observations of the Hon'ble Supreme Court in the case of Kali

Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773

which are as follows :-

"Another Golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.

Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, however is more apparent than real.

It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether."

16. Applying the aforesaid principles to the facts of the present

case, I find that in the complaint dated 23.10.2004 to the DCP,

Jagdish had not mentioned the name of this appellant. The

mentioning of this appellant in the complaint before the

Magistrate under section 200 Cr.P.C. seems to be an

afterthought. Further the star witness of the prosecution i.e.

the victim, Dharambir has categorically stated that Rohtash and

his wife, Sona had caught hold of him and Sunil gave two lathi

blows on his head. Dharambir has not named Rajpal as the

person who assaulted him. The only other witness, who has

been relied upon by the trial court is Smt.Savitri, mother of the

victim, who has also categorically stated that Rajpal was not