Sunil Kumar vs The State
2010 Latest Caselaw 5111 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 400/1999     Decided on 10th November, 2010

       SUNIL KUMAR                                          ..... Appellant
                            Through:    Mr. Gaurav Barathi, Mr. Shekhar
                                        Gupta & Mr. Mohit Kumar,
                                        Advocates.
                   versus

       THE STATE                                           ...... Respondent
                            Through:    Mr. Pawan K. Bahl, APP.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?
       2. To be referred to Reporter or not?
       3. Whether the judgment should be reported
          in the Digest?

MUKTA GUPTA, J. (ORAL)

The appellant in the present case has been convicted for an offence

punishable under Section 304 Part II IPC and awarded a sentence of

Rigorous Imprisonment for five years.

Briefly the prosecution case is that on 18th August, 1989 the appellant

and his father Som Nath quarrelled with Vinod Kumar and the appellant hit

Vinod Kumar with a brick resulting in an injury on the forehead above his

left eye brow. The injured was taken to the hospital but unfortunately he

expired the next day. The charge sheet was filed under Section 304/34 IPC

against the appellant and his father however the learned Additional Sessions

Judge charged the Appellant and his co-accused for offence punishable

under Section 302/34 IPC. The learned Trial Court acquitted co-accused

Som Nath for the reason that there was no evidence available against him

and he could not be convicted with the aid of Sec. 34 IPC. As regards the

present appellant the Trial Court observed that since the quarrel between the

appellant and the deceased was sudden and happened without any pre-

meditation on the spur of the moment, on a very trivial issue of spreading a

cot and the weapon of offence i.e. the brick used by the accused Sunil

Kumar also could not be termed as deadly, he was convicted for an offence

punishable under Section 304 Part II IPC.

Learned counsel for the appellant contends that there are material

contradictions in the statements of the alleged eye witnesses. PW3 who is

the complainant in his examination-in-chief stated that Som Nath caught

hold of Vinod whereas Sunil Kumar hit Vinod with a brick on his head

which struck at his eye brows. Vinod started bleeding. Satish and he took

his brother to the hospital where he expired the next day. However, in his

cross-examination the witness states that the accused Sunil i.e. the appellant,

threw the brick from the roof. The other brother of the deceased Satish has

been examined twice as PW4 and as Bachan Singh PW8. This exercise of

examining one person twice as prosecution witness in two different names is

stated to be clearly mala fide to plant number of eye witnesses against the

appellant. Even in the two testimonies of Satish @ Bachan there are

material contradictions. Further, the weapon of offence has not been

recovered. The Investigating Officer in his testimony states that the site plan

was prepared after a period of 7-8 days without the spot being identified by

any witness. Since the accused Som Nath has been acquitted in view of the

unreliable testimony of these witnesses, the Appellant also deserves to be

acquitted. In the alternative it is stated that the appellant has already

undergone a sentence of about two years and he being the sole bread earner

for his three small school going children, he be released on the period

already undergone.

Learned APP on the other hand contends that though there are minor

discrepancies in the statement of the witnesses, however PW3 and PW4

have categorically deposed that the appellant hit the deceased by throwing

brick at him resulting in the injury causing the death of Vinod Kumar. It is

further stated that though one witness cannot be examined twice in two

different names, however, in the present case when the witness appeared in

the witness box he has stated that he was known by both these names. The

testimony of eye witnesses is corroborated by the MLC and the post-mortem

report. Thus, the appeal deserves to be dismissed.

Having heard learned counsel for the parties and perused the record, it

is evident that there are material contradictions in the testimonies of the eye

witnesses. As per the deposition of PW3 Ram Pal, Som Nath caught hold of

Vinod and the present appellant hit him with a brick which struck at his eye

brow and in cross-examination it is stated that the appellant threw the brick

from the roof. PW4 Satish in the witness box states that a scuffle ensued

between Som Nath and Vinod and at this the appellant Sunil Kumar came

and hit Vinod with a brick which hit him at his eye brow. This witness again

appeared as PW8 Bachan Singh and it is at this stage in reply to a court

question he answered that he was also known as Satish and had earlier

deposed before the court in this case. In his testimony as PW8 this witness

Bachan Singh @ Satish states that an altercation took place between Som

Nath and Vinod, thereafter he and Ram Pal intervened. According to him,

Som Nath caught hold of Bachan Singh and the appellant Sunil Kumar hit

Vinod with a brick as a result of which he became unconscious. In his

cross-examination he states that on the day of occurrence abuses had already

taken place when he sat down for taking his meals and he saw the appellant

throwing a brick on Vinod. Vinod and Sunil had grappled with each other

before Vinod was hit by Sunil with a brick. The appellant Sunil threw the

half brick at a distance of about 8 feet in the gali. Thus according to him, the

appellant was in the gali whereas PW3 Ram Pal, states that the appellant

threw the brick from the roof. Though, the prosecution could not have

examined a witness twice in two different names, however this examination

of the witness twice would certainly inure to the benefit of the Appellant as

he would be entitled to the benefit of doubt arising due to the contradictions

arising. PW3 Ramphal in his cross examination has made three different

statements one after another about the place of incident. He states that the

quarrel took place inside the house, than says at the gate of the house and in

the third sentence, that it took place outside the court yard of the house. As

regards the court yard also he has made three statements that court yard is

separate from the street, later volunteered that by court yard he means street

and then says that courtyard (Angan) means open space outside the door.

There are material contradictions in the testimony of eye witnesses as to

whether the deceased was caught hold or not and the manner and place from

where the deceased was hit.

The laxity of the investigation in the present case does not end by

examining the alleged eye witness twice during the investigation and the

trial, it continues throughout the investigation and the trial. The

Investigating Officer has failed to collect any other evidence that could

corroborate the testimony of eye witnesses. The Investigating Officer has

neither seized the clothes of the deceased which were blood stained nor

recovered the weapon of offence i.e., the half brick. Moreover, the site plan

and other documents have also been prepared in a shoddy manner without

any basis in the absence of witnesses. Though errors in the investigation

should not discredit the testimony of eye witnesses, however, when there are

contradictions in the testimony of the eye witnesses, then these laxities

assume importance as there is then lack of corroborative evidence.

As per PW3 Ramphal, there were disputes between the two families

earlier as well. Indubitably minor inconsistencies in the statements of the eye

witnesses are normal. However, major and inherent inconsistencies on

material points discredit the testimony of the witness. The testimony of the

eye witnesses is not corroborated by any independent witness. Moreover, in

case of testimony of relation witnesses where there is previous enmity and

the testimony does not inspire confidence, it is a rule of prudence to seek

corroboration from independent evidence.

Thus, I am of the opinion that contradictions as pointed out by the

counsel for the Appellant and noted hereinabove are material. Moreover, the

prosecution has not been able to corroborate the testimony of the eye

witnesses with any other evidence on record.

As the prosecution has not been able to prove the case against the

Appellant beyond reasonable doubt, the Appellant is entitled to the benefit

of doubt. Hence the Appellant is acquitted of the offence charged. The bail

bond and the surety bond are discharged.

MUKTA GUPTA, J.

NOVEMBER 10, 2010/nk