Raj Pal vs The State (Nct Of Delhi)
2011 Latest Caselaw 1180 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                            Reserved on: 17.02.2011
                                                             Decided on: 28.02.2011

+                                    CRL. A. 21/1998

       RAJ PAL                                                          ..... Appellant
                      Through: Sh. Sumeet Verma, Amicus Curiae with appellant in person.

                      Versus

       THE STATE (NCT OF DELHI)                                          ..... Respondent

Through: Sh. Jaideep Malik, APP, for the State.

CORAM:

       MR. JUSTICE S. RAVINDRA BHAT
       MR. JUSTICE G. P. MITTAL

1.     Whether the Reporters of local papers       YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?          YES

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


       MR. JUSTICE S.RAVINDRA BHAT


%

1. This is an appeal against a judgment and order of the learned Additional Sessions Judge, dated 14.07.97, convicting the appellant in this case, of the offence punishable under Section 302, IPC.

2. The prosecution story was that frequent frictions used to occur between Smt. Sushma (the deceased) and her husband, Sula Ram, the main cause of which was his alleged alcoholism. It was alleged that according to the prosecution, one Vijay a tenant on the second floor of Sula Ram's house, used to associate him (Sula Ram) in drinking binges. In the previous two days, Vijay had brought three boys to Sula Ram. The night before the incident, Vijay had brought the boys, Rajpal, Kamal and Shanti to his room, whose names were known to Kumari Sukhi, (daughter of the deceased and Sula Ram) since they were addressed so by Vijay. On 1 st October,

CRL. A. 21/1998 Page 1 1995 at about 9.15 PM Sukhi (the daughter of Sula Ram and Sushma) was watching a television programme, along with her younger brother Hemant. The deceased Sushma Devi, was also watching television while lying on a cot. Sukhi's elder brother had gone to sleep in the export factory, located in front of their house. Her father was present at the shop located outside the street. Suddenly Rajpal and Shanti entered their house and shut the door. Rajpal had a revolver with him and Shanti had a long knife. Both threatened that in case they raised an alarm, all would be killed. Rajpal placed his revolver on the left temporal region of her mother (the deceased) and fired. They opened the door and went out. Kamal and Vijay were standing outside the door. They all ran away. She along with her brother raised an alarm of "Pakro pakro" ("Catch-Catch"). Her elder brother Chanderpal and neighbor Mahender Kumar chased the assailants along-with the others. In the mean time the police also came from the front and nabbed Rajpal S/o Jai Singh, A revolver was snatched and seized from his right hand. On his cursory search one charger with four live cartridges were recovered from the right pocket of his trousers. Those cartridges were taken into possession. On the statement of Kumari Sukhi case FIR No. 430 of 1993 was registered at P.S. Kalyanpuri and investigation was initiated. Inquest proceedings were conducted and dead body of Smt. Sushma was sent for post mortem examination. The accused Rajpal was interrogated. The accused Sula Ram and Shanti S/o Gyan Singh were also arrested in the case. Since accused Vijay and Kamal had absconded, they were proceeded under Sections 82 and 83 Cr. P.C. and they were later declared proclaimed offenders. After conclusion of the investigation, the accused were challaned to face trial. During the course of trial, accused Sula Ram died; consequently the proceeding against him, abated.

3. The Trial Court held that the testimonies of Sh. Mahender Kumar, PW-1 Chander Pal, PW-3, Const. Rajinder PW-7 and S.I. Arun Kumar PW-14 proved the charges. The Court held that the material facts, i.e the sound of gunshot, were an objective fact, not an imagined version. The gunshot, followed by the cry for help, led to their rushing in that direction and seeing the accused Rajpal running with a country made pistol in his hand. These facts established the immediate casual relationship with the incident. Therefore, all the incidents could fairly be said to be the incidents of the event under consideration and formed part of the same transaction, and were relevant under the provisions of Section 6 of the Evidence Act. These witnesses heard a gunshot at about 9.15 p.m. on 1.10.93. Thereafter, they heard the cry Pakro pakro ("Catch-

Catch") and    on rushing in that direction they saw the appellant fleeing with a country made


CRL. A. 21/1998                                                                             Page 2

pistol in his hand. He was over-powered. The weapon contained a fired ballot in its barrel. The appellant was immediately taken to the deceased's house, where she was found dead, due to a bullet injury. These circumstances formed a complete chain to prove that the appellant fired a shot at Smt. Sushma Devi and caused her death. The chain so formed was complete in all respects and left no room for him to slip away. The evidence led by the prosecution was of conclusive nature and consistent only with the hypothesis of guilt of the accused.

4. Mr. Sumeet Verma, learned amicus, appearing on behalf of the appellant, argued that the impugned judgment cannot be sustained, because it has glossed over several glaring inconsistencies, which viewed cumulatively undermine the entire prosecution version. It is submitted that the prosecution had heavily relied on the so-called eyewitness testimony of PW-3 Sukhia, who was allegedly present when the accused supposedly attacked and killed the deceased. Counsel pointed out that this witness was most material, and did not support the prosecution version at all. Similarly, submitted counsel, the other prosecution witnesses, who were also family members, and actual eyewitnesses to the attack, i.e PW-4 Hemant Kumar did not support the prosecution. Likewise, PW-5 Charan Singh and PW-8 Rajender Kumar (the latter being a neighbor of the deceased and Sula Ram) did not support the prosecution version.

5. It is urged next that the Trial court has not considered that the material witnesses relied upon to record the appellant's conviction, i.e PW-1 Mahender Kumar, PW-2, Chander Pal, PW-7 Constable Rajinder and PW-14 SI Arun Kumar, have contradicted each other in necessary particulars. Counsel contended that PW-1 claimed that he gave a chase, and apprehended Rajpal single handedly, whereas PW-2 Chander Pal deposed that members of the public apprehended the accused. Yet a third version was given by PW-7 and supported by PW-14, that the members of the public and the police caught the accused. However, the fourth, and an official version, by PW-12, another policeman, was that the members of the locality caught the accused. These contradictions, coupled with the complete lack of any evidence of motive, and the inability of the prosecution to prove the conspiracy angle between the four accused, and the fact that accused Shanti had been acquitted on the same evidence, undermined the entire prosecution which had to prove its case beyond reasonable doubt. Having alleged that Rajpal, Shanti and Vijay were roped in to kill the deceased by Sula Ram, the collapse of that theory meant that the story could not be relied on, even partly to convict even one accused. It was submitted, next, that the prosecution was not even sure as to where the appellant was apprehended from. Chander Pal deposed that he

CRL. A. 21/1998 Page 3 saw the chase from the top floor of the residence, and followed it. The improbability of his version, submitted counsel, lies in the fact that, he says the appellant was apprehended 1000 yards, i.e almost a kilometer away from the place where he was standing. Given that the incident occurred at night, it was well highly impossible to witness such an event, and yet be able to distinctly identify anyone, much less the accused Rajpal, a stranger, with any degree of accuracy.

6. Learned counsel further argued that apart from the conflicting evidence regarding the manner of giving chase to Rajpal, the Trial Court, on the same evidence, acquitted Shanti Prasad. It is submitted that Rajpal was nowhere in the scene of crime and was in fact picked-up from his residence, as is evident from the statement made by him under Section 313 Cr.PC. Learned counsel submitted that the prosecution's inability to prove its case with regard to presence of the other accused, and the complicity while seeking to establish the alleged conspiracy should have been given due weightage while appreciating the evidence. Learned counsel emphasized that the conflicting versions of prosecution witnesses with respect to the chase and apprehension of Rajpal even undermined the story of recovery of the katta. PW-1, it was submitted, claimed to have single-handedly caught hold of Rajpal, which led to the recovery of the katta and the disclosure statement, whereas the version of PW-2, PW-7 and PW-12 were entirely different. It is stated that PW-2 had deposed that that the katta and cartridges were taken from the accused and handed-over to the police whereas PW-7 stated that the Investigating Officer (IO) recovered the katta from the accused. On the basis of this conflicting evidence on a material aspect, such as apprehension and seizure of the weapon of offence, the Trial Court could not have concluded that the prosecution had proved Rajpal's guilt. It was lastly submitted that the singular lack of any material or evidence hardly establish Rajpal's motive to particularly pin-point him as a hired killer is vital to the prosecution story - an aspect which was completely and erroneously ignored by the Trial Court in its impugned judgment.

7. Learned APP submitted that while appreciating the evidence, the Court should not be bogged-down by minor inconsistencies in the testimonies of witnesses but must focus on the broad and material facts. If this approach were to be adopted, the Trial Court's conclusions are unassailable. It is urged that all the elements required to establish a fatal assault by the accused Rajpal were proved beyond reasonable doubt. These were :

(a)    The sound of gunshot;


CRL. A. 21/1998                                                                              Page 4
 (b)     Accused Rajpal's attempt to flee from the spot;

(c)     The members of the public, including PW-1 - being given a chase;

(d)     The apprehension of the accused by such members of the public and their being later
        joined by the police - deposed to by PWs 1, 2, 7 and 14;

(e)     Recovery of katta - spoken about by PWs 7 and 14;

(f)     Disclosure statement - proved by PW-1;

(g)     Death of Smt. Sushma as a result of gunshot injuries.

8. The learned APP submitted that if one carefully scrutinizes the testimonies of PWs 1, 2, 7 and 14, it is evident that the so-called "discrepancies" sought to be highlighted by the appellant are not on material facts at all but that they pertain to inconsequential details. In this context, it is urged that cumulatively, the testimonies of PWs-2, 7 and 14 clearly point to members of the public giving a chase to the appellant Rajpal and his consequent apprehension and further that the katta was recovered from his person. This was corroborated by PW-1 - the only difference being that he claimed to have apprehended the appellant single-handedly. Learned APP submitted that the latter detail is an obvious exaggeration which the Court would be within its rights to ignore so long as all the material particulars, i.e. the chase, identity of the appellant, his apprehension and recovery of the katta were proved.

9. It was submitted that the approach of the appellate Court in a criminal case ought not to be one of re-appreciating the evidence and assessing the conclusions of the Trial Court's judgment as if the exercises were being done in the first instance. While the appellate Court is under an obligation to carefully scrutinize the evidence, it should not second case the findings and conclusions of the Court of first instance if the same are reasonable and based on credible reasoning. Learned counsel here urged that the impugned judgment is a balanced one as is evident from the circumstance that out of the four original accused, only two stood trial of which one, i.e. Shanti Prasad was acquitted on the basis of inconsistencies in the evidence. Therefore, the Trial Court's general approach in the appreciation of evidence was correct. Mere errors which have no material bearing on the conclusion of guilt or innocence of the accused should not weigh with the appellate Court into reaching a contrary conclusion.

CRL. A. 21/1998 Page 5

10. It is evident from the above discussion that the original case made-out by the prosecution was a murderous assault upon the deceased Sushma, as a result of conspiracy hatched by her husband Sula Ram. It is a matter of record that Sula Ram died during the trial. Some of the co- conspirators who were assigned different roles stood trial. The appellant Rajpal was alleged to have killed the deceased after breaking into her house when she was watching television with two of her children. The prosecution had also alleged that one Shanti Prasad, a key accused was brandishing a sword, and had accompanied Rajpal. Rajpal and Shanti Prasad stood trial. The third co-accused absconded. During the trial, some prosecution witnesses, including two members of the deceased's family, PWs-3 and 4 turned hostile and did not support the prosecution. Likewise, PWs 5 and 8 turned hostile.

11. The Trial Court, while recording the appellant Rajpal's guilt, relied on the testimonies of PWs 1, 2, 7 and 14. The first three of these claimed themselves to be the eyewitnesses to the incident at different - but overlapping stages. PW-2, the son of the deceased stated that he was on the rooftop when he saw the accused running from his house; they were at a distance of about 300-350 yards. According to him, the accused was apprehended by people of the locality at a distance of 1000 yards from his house after Rajpal was given a chase. This witness stated that members of the general public handed over Rajpal to the police as well as the revolver, a fired cartridge and four live cartridges which he was carrying with him. According to him, there were five persons at the spot where the accused Rajpal was apprehended and about 100-150 persons collected at the place of incidence. PW-1 was sitting in his house when he heard a sound of gunshot. He saw 2-3 persons running towards the bus stand and immediately heard PW-3 raising alarm, crying-out to catch them. He claims to have chased the assailants and caught one of them, i.e. the appellant. According to him, one SI Arun Kumar, in the meanwhile, reached the spot along with Constables. This witness categorically stated that he apprehended the appellant. PW-1 stated that the katta was loaded with cartridges and four live cartridges were recovered from his possession. Crucially, this witness states that the accused gave Disclosure Statement to the IO in his presence; he also proved the Seizure Memo in respect of the katta and the seizure memo in connection with four live cartridges, Ex. PW-1/C, Ex. PW-1/D and Ex. P-3/1 to 4. He also identified the fired bullet, Ex. P-2. In his cross-examination, PW-1 mentioned that the deceased's house was at a distance of 10/11 yards from his house and that the road leading to the bus stand

CRL. A. 21/1998 Page 6 was in front of his house. According to the witness, 15-20 minutes after the appellant was apprehended, he was taken to the spot of the incident.

12. PW-7 corroborates the testimony of PW-2 by deposing that he had heard the noise of some fire-arm as well as cry of "Pakdo" "Pakdo" and ran to the place where he saw a moving crowd. According to PW-7, 20-25 persons were chasing the appellant, who was running alone. PW-7 along with PW-14 and Constable Satish, with the help of members of the public caught the accused, who had a katta with him. The IO, PW-14 recovered the katta, four live cartridges and one fired cartridge from the katta from the accused's pocket. PW-14 supports the version of PW-

7. He also stated that Chander Pal, PW-2 was amongst those who chased the appellant.

13. It is apparent from the previous narrative that PW-1, PW-2 and the two police witnesses, PW-7 and PW-14 were eyewitnesses to the chase given to the appellant, his nabbing, recovery of the weapon of offence from his hand, and the subsequent inspection of the spot of the occurrence. The appellant's argument is that there are grave and serious inconsistencies with regard to their respective versions, which, taken together with the complete lack of motive, as far as he is concerned, should result in the court giving him the benefit of doubt.

14. The Trial Court, in the impugned judgment, recorded its findings as follows:

"13. Testimony of Sh. Mahender Kuamr, Chander Pal, Const. Rajinder and S.I. Arun Kumar let us know that all the four witnesses have heard a sound of bullet fire, followed by an alarm of "Catch-Catch". They ran in the direction of the sound and found accused Rajpal running along with a country made pistol in his hand. Rajpal was apprehended. Country made pistol was checked and one used cartridge was found embedded in the barrel of the said country made pistol. Four live cartridges were also recovered from the possession of Rajpal. Accused Rajpal was taken to the house of Smt. Sushma Devi, who was found lying dead on a cot. She has received a bullet injury on her temporal region. The evidence so adduced by the prosecution speaks about the facts which are so connected with the fact in issue as to form part of the same transaction. The testimony of these witnesses are relevant under Sec. 6 of the Evidence Act. The provision of the said section embody the rule of admission of evidence relating to what is commonly known as res-gestae. The essence of the doctrine of res-gestae in evidence is that the facts which though not in issue are co connected with the fact in issue as to form part of the same transaction and thereby become relevant like fact in issue. Res-gestae means everything that may fairly be considered as incident of the event under consideration. Herein the case the event under consideration is that the death of Smt. Sushma Devi was caused by firing a shot at her with a point blank range. No evidence has come over the record as to who fired at her. But it has come over the record that Sh. Mahender, Chander Pai, Const. Rajinder, S.I.

CRL. A. 21/1998 Page 7 Arun Kumar head a sound of bullet fire, followed by the noise of "Catch-Catch". All the four rushed in the direction from where the sound of bullet fire and alarm for help were coming. Accused Rajpal, present before the court, was seen running near the house of deceased Sushma Devi. He was having a country made pistol in his hand. He was chased and overpowered. Country made pistol was snatched from him and on checking a fired bullet was found embedded in its barrel. He was brought at the house of Smt. Sushma Devi, where she was found dead after receipt of a bullet injury over her temple. The incidents, above referred, can fairly be considered as the incidents of the events under consideration. It is a settled proposition of law that a transaction may last for hours, days or for weeks. The incidents may consist of sayings and doing of anyone absorbed in the event whether participant or by-standard, they may compromise things left undone as well as things done. They must be necessary incidents of the litigated act in the sense that they are part of the immediate preparation for or emanations of such act and are not produced by the calculated policy of the actors. They are the act talking for itself, not what people say when talking about the act. In other words, they must stand on an immediate casual relation to the act, a relation not broken by the inter position of voluntary individual witnesses, seeking to manufacture evidence for itself.

14. The incident deposed by Sh. Mahender Kumar, Chander Pal, Const. Rajinder and S.I. Arun Kumar are the necessary incidents of the event that the death of Smt. Sushma was caused. The factum of their hearing a sound of bullet fire are emanation of such act and were not produced by calculated policy of these witnesses. On hearing the bullet sound, followed by the alarm for help, they rushed in that direction and saw accused Rajpal running with a country made pistol in his hands. These facts itself speak about the immediate casual relation of these incident to the ones under consideration. Therefore, all these incidents can fairly be said to be the incidents of the event under consideration and form part of the same transaction. Therefore, these incidents are relevant under the provisions of Section 6 of the Evidence Act.

15. The aforesaid witnesses heard a sound of bullet fire at about 9.15 p.m. on 1.10.93. Soon after the said sound they heard the alarm of "Catch-Catch" and on rushing in that direction they saw accused Rajpal running with a country made pistol in his hand. He was over-powered. Pistol was found containing a fired ballot in its barrel. Accused Rajpal was immediately taken to the house of Smt. Sushma Devi where he was found dead, on receipt of bullet injury. These circumstances form a complete chain to the effect that it was accused Rajpal who fired a short at Smt. Sushma Devi and caused her death. The chain so formed is complete in all respect and leaves no room for accused Rajpal to slip away. The evidence adduced by the prosecution is of conclusive nature and consistent only with the hypothesis of guilt of the accused. The circumstances are not cap able of being explained by any other hypothesis, except the guilt of the accused. Therefore, the evidence above referred can be used to record a finding to the effect that it was accused Rajpal who had caused the death of Smt. Sushma Devi.

For application of circumstantial evidence in a given case, the law has been laid in the judgments in Pandala Veera Reedy (AIR 1990 S.C. 79), Ashok Kumar

CRL. A. 21/1998 Page 8 Srivastava (1992 Cr.L.J.1104), Dhanjay Chatterjee (J.T. 1994 (1) S.C. 33) and Balvinder singh (1996) Crl.L.J. 883). Using the above precedents, the circumstantial evidence referred above has been relied and a finding is recorded that it was accused Rajpal who has caused the death of Smt. Sushma Devi."

15. It is no doubt true that there are some variations as to the version which led to the nabbing and arrest of the appellant. PW-1 states that he gave a chase, and nabbed the appellant, and later, the police joined him; PW-2 (who claims to have seen the chasing and nabbing of the accused from the top floor) witnessed the chase by members of the public, and apprehension of the appellant; PW-7 and PW-14 state that the appellant was chased by members of the public and the police, before he was caught. These are discrepancies no doubt. Yet, one can see a broad pattern, in these depositions, i.e of a chase, given by members of the public, police arriving (and joining the chase), nabbing, recovery of the katta. PW-1's claim can be put down at best to an exaggeration, whereby he wishes to claim the credit exclusively for catching the culprit. Yet, that does not detract from the objective facts, pertaining to hearing of gun-shot, the appellant running, being chased, later caught, being taken into custody and recovery of the weapon of offence, from him. The court is also conscious of the circumstance that the accused did not cross-examine PW- 1 about the recovery of articles, nor PW-12, about the ballistic report (PW-12/L), which says that the katta recovered from him was the one which fired the bullet that killed the deceased.

16. In a criminal trial, it is to be remembered that witnesses often are examined considerable time after the event. Most human beings have imperfect recollection of past events, or their sequence. When it relates to crime, like in the present instance, the court is viewing the narrative of witnesses who had seen the incidents simultaneously, from different points. PW-2 saw it from the roof top; PW-1 saw the accused at close quarters, and was joined later by other members of the public (also corroborated by PW-1 and PW-12, PW-7 and PW-14). The differing versions can be put down to fading memories, and the varied impressions gathered on the assimilation of objective facts. The Supreme Court, speaking about minor discrepancies in the witnesses' testimonies, has cautioned against a rigid approach, in its decision reported as Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270, in the following words:

"11. It is to be noted that PWs. 7 and 13 were the injured witnesses and PW 10 was another eyewitness and was the informant. Law is fairly well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible

CRL. A. 21/1998 Page 9 and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence."

17. This court, acting as an appellate Court, is no doubt obliged to appreciate the evidence led during the trial, and consider the soundness of the reasoning in the impugned judgment. Yet, the Court should be wary of interfering with the Trial Court's findings, unless there are substantial and compelling reasons, which may include the Trial Court's findings being palpably wrong on the facts; or being the result of an erroneous appreciation of law, or approach being patently illegal or if the judgment would lead to grave miscarriage of justice (Ref. Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415).

18. Upon consideration of all the materials on record, this court is of the opinion that the findings and sentence recorded by the Trial Court do not call for interference. The appeal fails and is accordingly dismissed.

                                                                      S. RAVINDRA BHAT, J




                                                                              G. P. MITTAL, J
FEBRUARY 28, 2011




CRL. A. 21/1998                                                                          Page 10