State vs Sh.Prem Singh @ Kale & Dwarka Nath @ ...
2010 Latest Caselaw 3917 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Crl.M.A 8224/2010 & CRL.LP No.213/2010

%                            Date of Decision: 25.08.2010

                                                       .... Petitioners
State
                         Through      Mr.Lovkesh Sawhney,


                                         Versus


Sh.Prem Singh @ Kale & Dwarka Nath @ Rakesh .... Respondents
@ Deena
                Through    Nemo



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

1.      Whether reporters of Local papers may be                YES
        allowed to see the judgment?

2.      To be referred to the reporter or not?                  NO
3.      Whether the judgment should be reported                 NO
        in the Digest?



ANIL KUMAR, J.

*

Crl.M.A.No.8224/2010

This is an application seeking condonation of delay of 109 days in

filing the leave to appeal.

For the reasons stated in the application, the delay in filing the

leave to appeal is condoned and the application is allowed.

Crl.L.P.No.0213/2010

1. The petition is against the order dated 18th August, 2009

acquitting Sh.Prem Singh and Sh.Dwarka Nath of charges under

Sections 302/ 201/ 394/ 120 B/ 397/ 411/ 34 of the Indian Penal

Code read with Sections 27/54/59 of the Arms Act by the Sessions

Judge in SC no. 20 of 2008 in FIR No. 306 of 2004 Police Station Sultan

Puri.

2. Brief facts to comprehend the case are that on 23rd March, 2004

pursuant to a call made at about 7.15 a.m, a dead body lying in a

vacant plot in front of Karan Public School, Aman Vihar, Sultan Puri,

Delhi was recovered, which was later on identified to be of one

Sh.Prahlad. The prosecution case is that during investigation on 23rd

March, 2004, it came to the notice of the Investigating Officer, Sh.Preet

Singh PW 13 that two persons, namely, Sh.Ram Chander PW 7 and

Sh.Vijay Kumar PW 6 had witnessed the incident. They revealed that

they were returning from Nangloi and when they reached near Karan

Public School, three boys surrounded them and one of them namely,

Amar Chand put a knife on the chest of Sh.Ram Chander PW 7 and

others searched them and on finding nothing, Sh.Ram Chander PW 7

and Sh.Vijay Kumar PW 6 were allowed to go, however they had been

beaten also. According to the petitioner when these two persons had

gone only about 75 to 100 steps, they saw another person wearing a red

shirt and black trousers coming from the side of Karan Public School.

Out of curiosity, Sh.Ram Chander PW 7 and Sh.Vijay Kumar PW 6 hide

themselves in a dark corner in order to witness as to what the accused

persons would do with that person who had come wearing a red shirt.

3. The case of the prosecution is that Sh.Ram Chander and Sh.Vijay

Kumar witnessed, that the accused Prem Singh caught hold of the

victim from behind whereas accused Amar Chand put a knife on his

chest and accused Suraj searched him which was resisted by that

person. As he resisted the bid to rob him, he tried to raise noise

because of which accused Amar Chand stabbed him in the chest. As

the victim screamed on being knifed, Sh.Ram Chander PW 7 and

Sh.Vijay Kumar PW 6 got frightened and left for their houses. The

victim was later identified as Prahlad, father of Sh.Suraj who had come

to lodge a missing person's report of his father with a photograph of the

same.

4. Later on, all the accused, namely Prem Singh, Dwarka Nath,

Suraj and Amar Chand were arrested and they made their confessional

statements. At their instances, allegedly one purse belonging to the

deceased Prahlad was recovered from the house of Amar Chand,

whereas a mobile phone of the deceased was recovered at the instance

of the Dwarka Nath from his house. The alleged weapon of offence, a

spring activated knife was also recovered at the instance of the accused

Amar Chand from his house.

5. The accused were charged under Sections 394/ 302/ 201/ 34 of

the Indian Penal Code and also under Sections 25/ 27 of the Arms Act

to which the accused pleaded not guilty. Since the accused Suraj was a

juvenile and the accused Amar Chand was also declared a juvenile

during the proceedings, their cases were sent to the Juvenile Court for

them to face trial there.

6. The case was tried against Prem Singh @ Kale and Dwarka Nath

@ Rakesh @ Deena and prosecution examined 13 witnesses and the

statements of accused, Prem Singh and Dwarka Nath were recorded

under Section 313 of the Indian Penal Code, wherein they submitted

that they are innocent and have been falsely implicated in this case.

Accused Dwarka had claimed that his younger brother was lifted from

his house by the police and when he went to Police Station to get his

brother released, he was falsely implicated in this case. Whereas

accused Prem Singh claimed that he was working as a gas cutter and as

his family members were taken away by the police officials, he went to

get them released, he was falsely implicated in this case.

7. The Sessions Court considered the testimonies of (PW6) Sh.Vijay

Kumar and (PW7), Sh.Ram Chander, the alleged eye witnesses, and

held that the corroboration of all the facts is not a sine qua non for

conviction, and no corroboration is required, if after careful perusal, the

version of eye witnesses is found cogent, convincing and inspires

confidence of the Court. However, considering in detail the testimonies

of these two eye witnesses and the other testimonies, especially of the

Investigating Officer, (PW13) Inspector Preet Singh, the Court

disbelieved the testimonies of alleged eye witnesses and thus, acquitted

the respondents Sh.Prem Singh and Sh.Dwarka Nath of the charges

framed against them.

8. This Court has heard detailed submissions made on behalf

of the State by the learned prosecutor and have also perused the entire

trial court record. The emphasis of learned counsel for the petitioner

Mr.Lovkesh Sawhney is that the testimonies of eye witnesses Sh.Vijay

Kumar (PW 6) and Sh.Ram Chander (PW 7) who are the spot witnesses

do not suffer from any grave infirmity, nor have contradictions and are

cogent and convincing, and therefore, the Sessions Court ought to have

relied on them along with other materials to infer the guilt of the

respondents/accused. Regarding contradictions in the testimonies of

(PW 6) and (PW 7), Sh.Vijay Kumar and Sh.Ram Chander respectively, it

is contended that the contradictions are in fact, minor discrepancies

which do not go to the root of the matter so as to disbelieve them.

9. The Trial Judge has noticed the variations in the testimonies of

(PW 6) and (PW7) as Sh.Vijay Kumar (PW6) has deposed that he along

with (PW7) Sh.Ram Chander had gone to meet their friend Mukesh at

Nangloi at about 9.00 p.m. and left at 10.30/11.00 p.m., and as stated

by Sh.Ram Chander (PW7) during cross-examination he gave the time

of meeting the friend at 8.00/8.30 p.m., however, he did not know the

name of the friend with whom he along with Vijay Kumar had

admittedly interacted for more than two hours. Vijay Kumar PW 6 had

stated that he knew Ram Chander PW 7 for last about three months

prior to the incident who resides at a distance of about 70 to 75 meters

from his house, whereas, Ram Chander stated that he had known Vijay

Kumar for the last 4 to 5 years. This was also noticed that though they

are neighbours and had been meeting each other, , Vijay Kumar did not

know about the profession of Ram Chander. Sh.Vijay Kumar had

deposed that he did not know accused Prem Singh prior to the

occurrence and he came to know his name only on hearing the

conversation between the accused as they were calling names of each

other, whereas Ram Chander has deposed that accused Prem Singh is

not only known to him but that he was also known to Vijay Kumar (PW

6) from before as the accused used to visit their locality with accused

Amar Chand.

10. According to Vijay Kumar, PW 6 injuries were sustained by him

and he had gone to the doctor, which fact is contradicted by PW 7 Ram

Chander who stated that neither he nor Vijay Kumar sustained injuries

nor had they visited the doctor on account of alleged beatings given to

them by the accused.

11. The variations in the testimonies of PW 6 and PW 7 who are the

alleged eye witnesses is also substantial, regarding the arrival of the

deceased, as according to PW 6 he was coming from the side of Karan

Public School whereas Ram Chandra PW 7 had stated that he passed

near the place where they were standing. These variations in the

testimonies of the two eye witnesses cannot be termed minor

discrepancies and considering the entirety of the facts and

circumstances, these discrepancies are apparently major contradictions

and cannot be relied on.

12. The Trial Court has also noticed the unusual behavior of these

two eye witnesses which dilutes their credibility. Though both of them

were stopped by the accused persons and even beaten up and as

nothing was found on them, they were allowed to go. Yet instead of

running from there to save their lives as categorically stated by them

that one of the accused had allegedly put a knife on the chest of (PW7),

they preferred to remain present at the spot at a very short distance of

about 75 to 100 steps to see as to what accused would do to another

passerby. If according to Ram Chandra, PW 7, the deceased had passed

from near the place where they were standing, then normally they

would have stopped him or cautioned him about the danger of the

accused trying to rob the passersby. However, nothing was done by

them which casts a serious doubt about the credibility of these two

witnesses.

13. There are other major contradictions in the testimonies of these

two witnesses as (PW 6) Sh.Vijay Kumar had deposed that police

officials met him at 7.00 p.m. on 23rd March, 2004, and at another

place he stated that his statement was recorded at 4.00 p.m. on 23rd

March, 2004. If the police officials had first time met him at 7.00 p.m.

on 23rd March, 2004, then how could his statement be recorded at 4.00

p.m. has not been satisfactory explained by the learned counsel for the

petitioner. These statements of PW 6 Vijay Kumar are irreconcilable.

14. The testimony of the Inspector Preet Singh (PW13) also has cast

doubts on the veracity of the statements of the alleged eye witnesses PW

6 and PW 7. Inspector Preet Singh was handed over the investigation a

day after 22nd March, 2004, the day of the incident. He had prepared

inquest papers, got the deceased identified, postmortem Ex. PW8/B was

got conducted by him and subsequently the dead body was handed over

to the legal heirs on 24th March, 2004 vide receipt Ex. PW3/C. He had

also arrested Prem Singh @ Kale on 6th April, 2004 vide arrest memo

Ex. PW13/B and conducted his personal search vide Ex. PW13/C and

also recorded Prem Singh's alleged disclosure statement Ex. PW13/D

during which he had disclosed that he had handed over the mobile

phone of the deceased to the co-accused Dwarka Nath and also

prepared pointing memo at his instance vide Ex. PW 13/E regarding

place of occurrence. It was further testified by Inspector Preet Singh

that Dwarka Nath was arrested on 10th April, 2004 vide memo Ex. PW

13/F whose personal search was conducted vide memo PW13/G and

the alleged disclosure statement was also recorded vide memo Ex.

PW13/H on the basis of which one mobile phone was recovered from

the house of Dwarka Nath and the seizure memo was Ex. PW13/I.

15. The said Inspector had also testified that one black coloured shoe

was recovered from the spot where the dead body of the deceased was

found whereas another shoe was recovered at some distance and an

unscaled site plan Ex. PW13/O was prepared. Though PW 6 and PW 7,

the alleged eye witnesses have deposed that at various points of time

they were made to join the investigation and also witnessed various

proceedings during investigation, however, Inspector Preet Singh has

conspicuously been quite about the alleged eye witnesses having joined

the investigation or being taken to the mortuary of Sanjay Gandhi

Hospital, for identification of the deceased or that they had

accompanied the Inspector and other police officials to the house of

Suraj from where he was arrested and that the recoveries were effected

in their presence. The perusal of the testimonies of Inspector Preet

Singh (PW13) rather reflects as if these witnesses never existed and he

was not aware of their presence. The said IO of the case also failed to

depose about the alleged recovery made from the house of the accused

Suraj or that he had made a disclosure statement that accused Amar

Chand had taken the purse and that Suraj has retained the wrist watch

and Prem Singh had taken the mobile phone of the deceased. Though

independent witnesses were present but neither the disclosure

statements had been recorded in their presence nor recoveries were

made in their presence.

16. Though the accused Dwarka was arrested on 10th April, 2004

from an area which is thickly populated yet no neighbour or

independent person was joined in the investigation at the time of his

disclosure. Rather it has not been shown that even any effort was made

to join any person during recovery of case property at the instance of

accused Dwarka. The site plan Ex. PW 1/F of the place from where the

mobile phone was recovered does not indicate from where the mobile

phone was recovered.

17. The learned counsel for the petitioner is unable to give any cogent

or reliable reason as to why the recoveries were not made pursuant to

the disclosure statement in the presence of the independent witnesses

though the independent witnesses were present. Reliance can be

placed on Chander Pal and Ors. Vs. State, 1998 (3) CC Cases HC 215

and State of Haryana Vs. Ram Singh, 2002 SCC (Crl.) 351 holding that

when the disclosures and arrests are made in the absence of

independent witnesses, a doubt or suspicion is created and benefit of

such a doubt is to be given to the accused.

18. Learned counsel for the petitioner is also unable to give any

satisfactory reply regarding deposition of IO regarding recovery effected

on 8th April, 2004 or anything done by the investigating officer PW 13

on that day. Though constable Naresh Kumar PW 2 deposed that

proceedings were conducted on 8th April, 2004, in which the accused

Amar Chand and Prem led the police party consisting of himself,

constable Virender and IO to B Block, Karan Vihar, Part- V where at his

instance, a spring activated knife was recovered from the Almirah of his

house, however, PW 13 has not deposed anything about the same.

19. These points as detailed hereinabove are the major contradictions

and hence cannot be construed to be minor discrepancies considering

the facts and circumstances of the case. If the alleged eye witnesses do

not give the name of the person after visiting him, if despite being

neighbors they do not know the profession of each other; despite the

fact that though on account of being beaten and threat given by one of

the accused and putting a knife on their chest, instead of running from

there, they waited at a distance of only 75 feet and did not warned or

caution another passerby who was allegedly ultimately killed by the

alleged accused would constitute major contradictions. Apparent

lacunas in the testimony of the investigating officer, makes it difficult

to infer that the prosecution has been able to establish all the links in

the chain of events pointing to the guilt of the accused that the crime of

murdering the deceased Sh.Prahlad was committed by them.

20. Despite arrest and recoveries made from the places which are

thickly populated, no cogent reasons have been disclosed for not

making any efforts to arrest or making recoveries or recording the

disclosure of the statements in the presence of independent persons.

21. Testimonies of PW1, PW3, PW4, PW5, PW8 & PW9 also do not

reveal any such fact which will incriminate the accused Prem Singh and

Dwarka Nath. If the testimonies of PW6 and PW7 Vijay Kumar and Ram

Chander are disbelieved as not being creditable, it cannot be held that

the accused had killed the deceased.

22. This cannot be disputed that merely on the basis of suspicion a

person cannot be held guilty as each of the circumstances relied on has

to be proved with certainty so as to exclude the probability of innocence

of the accused. In the totality of the facts and circumstances, the

undeniable inference to be drawn is that the petitioner has failed to

establish that the accused Prem Singh and Dwarka Nath/respondents

had committed robbery on the person of Prahlad and robbed him of the

mobile phone, the purse and the wrist watch and has caused culpable

homicide amounting to his murder. This has also not been established

that Prem Singh and Dwarka Nath were present at the spot at the

relevant time, or that they have committed or participated in the alleged

offence and that the alleged stolen mobile phone was recovered from the

person of the Dwarka Nath in absence of any recoveries made in

presence of independent witnesses in the facts and circumstances and

on the basis of testimonies of alleged eye witnesses Pw6 & Pw7..

23. The learned counsel for the petitioner is also unable to reply

satisfactorily as to how the alleged eye witnesses PW6 and PW7 could

have witnessed the alleged robbery and knifing of the deceased by the

respondents, as the body of the deceased was found in a vacant plot

which has a boundary wall around it, which boundary wall was broken

only at two places. In Ex. PW11/A, the scaled site plan prepared by the

prosecution is of the recovery of dead body only and it has not been

shown as to where alleged eye witnesses PW6 and PW7 were hiding.

Surprisingly detailed site plan was not prepared detailing all relevant

aspects of crime. This is not the case of the prosecution that they were

hiding in the same plot having boundary wall around it where the dead

body was found. If that be so it has not been established as to where

they were hiding and from the place of hiding, whether the whole

incident could be witnessed or not. If once consider the plan Ex.

PW11/A, alleged eye witnesses were at a distance of about 75 steps or

feet, then they would have been across the wide road which is about 75

feet. Nothing is shown in the plan that there were such structures or

obstacles behind which they could hide himself. The version of PW 6

and PW 7 is also that at the time of incident it was quite dark. There is

no satisfactory explanation as to how they could see the alleged incident

in such darkness from such a distance. Neither the testimonies of

witnesses nor the plan depict any light source because of which even in

the darkness on account of light from such a source, the alleged

witnesses could watch robbing and stabbing of the deceased.

24. The learned counsel for the petitioner has also argued that the

incident happened not inside the plot but outside the plot which was

visible and could be viewed by PW6 and PW7 and later on the body was

dragged inside the plot. However, even this plea also cannot be

established on the basis of evidence on record, nor does such a

hypothesis emerges from the testimonies of all the witnesses. Rather

the testimony of one of the alleged eye witness is that the deceased was

stabbed by one of the accused. If the stabbing was outside the plot

having boundary wall all around it, then there should have been either

sign of blood or struggle or dragging of body by the accused inside the

vacant plot. The place where the alleged knifing of the deceased took

place has not been shown in the scaled site plan Ex. PW11/A.

25. In the totality of the facts and circumstances, appreciation of

testimonies of the witnesses of the prosecution by the trial judge does

not suffer from any grave infirmity or such error which requires any

interference by this Court in the facts and circumstances of this case.

This cannot be disputed that unless the conclusions of the trial court

drawn on the evidence are unreasonable, perverse or unsustainable, the

appellate court is not to interfere with the order of acquittal.

26. Learned counsel for the petitioner has not been able to show any

such unreasonableness or perversity which will impel this Appellate

Court to interfere with the order of the acquittal. This is no more res

integra that as a rule of prudence, the appellate court should always

give proper consideration to matters such as: i) views of the trial judges

as to the credibility of the witnesses; ii) the presumption of innocence

in favor of the accused, a presumption which is not weakened in any

manner on account of acquittal at the trial; iii) the right of the accused

to the benefit of any doubt and iv) the slowness of the appellate Court

in disturbing of a finding of fact arrived at by the trial judge who has

the advantage of seeing and noticing the witnesses and noticing their

demeanor.

27. No other ground has been raised by the learned counsel for the

petitioner seeking leave against the judgment of the trial court dated

18th August, 2009 in Session Case No.20 of 2008 pursuant to FIR

No.306 of 2004, PS Sultan Puri, under Section 302, 201, 394, 120-

B,397, 411 & 34 of the Indian Penal Code read with Sections 27, 54 &

59 of the Arms Act. As the view taken by the trial court does not suffer

from any unreasonableness or perversity, there are no grounds to grant

leave to the petitioner more so because on analysis of facts and

circumstances and the evidence of the prosecution, this court also does

not differ with the inferences of the trial court acquitting the

respondents.

28. For foregoing reasons, we do not find any ground to interfere with

the decision of the trial court acquitting the respondents from the

charges made against them. There are no grounds to grant leave to

appeal to the petitioner, and consequently, leave to appeal is declined

and the petition is dismissed.

ANIL KUMAR, J.

SURESH KAIT, J.

AUGUST 25, 2010 'VK'