Delhi High Court
State vs Jai Kumar Das on 25 July, 2011
Author: S.Ravindra Bhat
$~8 & 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and Pronouncement: 25th July, 2011
+ CRL.L.P. 83/2004
STATE ..... Petitioner
Through : Mr. Jaideep Malik, APP for the State.
ASI Ram Gopal, PS Mukherjee Nagar.
versus
JAI KUMAR DAS ..... Respondent
Through: Mr. Ajay Verma, Amicus Curiae with
Mr. Gaurav Bhattacharya, Advocate.
AND
+ CRL.L.P. 54/2005
STATE ..... Petitioner
Through : Mr. Jaideep Malik, APP for the State.
ASI Ram Gopal, PS Mukherjee Nagar.
versus
JAI KUMAR DAS ..... Respondent
Through: Mr. Ajay Verma, Amicus Curiae with
Mr. Gaurav Bhattacharya, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported
in the Digest?
JUDGMENT
S.RAVINDRA BHAT, J. (OPEN COURT)
1. The State seeks leave to appeal, by these two petitions, against the
common judgment and order of the learned Sessions Judge dated
11.05.2004 in Sessions Case No.71/2000 and Sessions Case No.72/2000.
By the said judgment, the Respondent Jai Kumar Das was acquitted of the
charges of committing offences punishable under Section 224 and 302 of
the Indian Penal Code (IPC).
2. The prosecution allegation was that the Respondent had been interned in
the beggars‟ home at Kingsway Camp (premises being known as „Sewa
Kutir‟) for one year. One Manoj Kumar (hereinafter referred to as "the
deceased") was also serving an identical sentence at that time. The
deceased was allegedly stabbed by the Respondent with a piece of glass in
his abdomen; the injury resulted in the death of Manoj Kumar. The
prosecution further alleged that the Respondent allegedly escaped from
Sewa Kutir and was apprehended by the PCR van in the vicinity of Police
Station Civil Lines, near the Exchange Store at around 3:27 A.M. on 19th
August, 1998. The prosecution claims that the Respondent admitted to his
guilt and complicity in the death of Manoj Kumar. After completion of the
investigation, the Respondent was charged with committing offences
mentioned previously in the judgment. He entered the plea of not guilty.
The prosecution led its evidence in the form of about 23 witnesses - so far
as the charge pertains to the offence of murder; and 6 witnesses as for as
the charge pertained to the offence punishable under Section 224 IPC.
After considering these depositions and the material on record, the Trial
Court concluded that the accused/Respondent was not guilty and acquitted
him of all the charges.
3. It is argued that the accused/Respondent‟s arrest, almost
contemporaneously with the incident and his unexplained presence at PS
Civil Lines, at 3:27 A.M. was an extremely strong circumstance that ought
to have been taken into consideration by the Trial Court. The Learned
APP argues that after the homicidal attack upon the deceased Manoj, the
Respondent fled from Sewa Kutir. These facts were deposed by PW-6 SI
Om Parkash Singh and PW-16 Bairagi Lal. Learned APP for the State
submitted that in disbelieving their evidence and ignoring the
circumstances which weighed heavily against the Respondent, the Trail
Court committed an error. It is also argued, in addition, that once the
prosecution established that the Respondent was present at 3:27 A.M. and
had been arrested with a piece of glass, an iron rod and was also found
wearing blood stained clothes, the onus shifted on him by virtue of Section
106 of the Evidence Act to explain the incriminating circumstances. Since
he did not account for them, the finding of acquittal was not justified.
4. We have considered the record in both the cases which were summoned
for the purpose of these proceedings. The Trial Court while concluding
that the Respondent was not guilty (and since the case is entirely based on
circumstantial evidence) - noticed the following discrepancies and
omissions in the prosecution evidence, which according to it were
sufficient to justify acquittal:-
(1) That PW 6 and PW-16 on the one hand stated that when the deceased
was seen at around 11:30 P.M. and even subsequently, the wound, in
his abdomen was visible. However, during the proceedings it
transpired that the Kurta recovered in that regard did not bear any cut
mark.
(2) The prosecution had alleged that the deceased Manoj was taken for
treatment at around 11:30 P.M. - the time by which the attack had
taken place. However, PW-23 Smt. Bhajan Kaur, who treated and
dispensed medicine to the deceased, in her deposition clearly stated
that he was given medication for loose motion. She did not mention
having noticed any cut mark or bleeding on the deceased‟s body. She
also produced Ex.PW-23/A, the relevant register for this purpose
which was marked during the trial.
(3) PW-17, the one prosecution witness who claimed to have seen the cut
marks in the abdomen was himself uncertain in this regard. At one
place he stated that he noticed bleeding at 11:00 P.M. but subsequently
upon cross-examination by the prosecution, by leave of the Court, he
fixed the time at 1:00 A.M. on 19.08.1998.
(4) All witnesses stated that Manoj was in his undergarments (therefore, if
there was any cut or injury on his abdomen that was noticeable).
However, PW-16 stated that he was fully dressed in Kurta Payjama.
(5) All prosecution witnesses clearly deposed that the deceased was
conscious between 1:00 and 1:30 A.M.
(6) The prosecution„s inability to prove any enmity or motive, on part of
the Respondent.
5. One of the circumstances which led the trial Curt to hold the Respondent
not guilty to the charges was inordinate and unexplained delay in lodging
of the FIR. The Trial Court recorded, materially, in this regard that :-
"39. There is yet another fact that throws immense doubt on
the prosecution's case. Despite the alleged apprehension of the
accused Jai Kumar with the alleged weapon of offence at 3.27 am,
the investigating officers PW25 and PW27 have claimed that no
case of murder as the specific cause of death of Manoj was not
known. Therefore they were awaiting he instructions of the SDM,
more so since the death was a custodial death. In other words,
even so soon after the death and alleged apprehension of the
accused Jai Kumar, SDM was not able to give directions for
registration of the case under Section 302 IPC against the accused
and needed time till 31st to issue such directions. The only
conclusion that can be drawn is that there was no case made out
against the accused and subsequently, in order to hide the true
facts, a belated FIR was registered against the accused and a case
made out against him."
6. So far as the charge pertaining to the offence punishable under Section
224 IPC is concerned, the trial Court noticed that the prosecution was
unable to substantiate it and on the other hand, the evidence suggested that
no window pane had been broken; no witness mentioned hearing about the
shattering of any glass. The prosecution did not even produce any site map
to prove that the Respondent had escaped from Sewa Kutir.
7. The prosecution did not make any blood comparison or analysis of the
sample allegedly found on the Respondent hand when he was arrested at
3:27 A.M. by PW-24.
8. It has been held that the standard to be applied by the High Court while
considering whether or not to grant leave to Appeal against the order of an
acquittal is to see if there are substantial or compelling reasons to do so in
the Trial Courts, such as glaring errors in appreciation of law; overlooking
material evidence; and generally adopting any approach resulting in grave
miscarriage of justice etc.
9. Having considered the records in both the cases, we find that no such
reasons are forthcoming which warrant the grant of leave in either of
them. The Trial Court‟s findings are well reasoned and do not call for any
interference. The leave petitions are therefore, dismissed.
S. RAVINDRA BHAT
(JUDGE)
G. P. MITTAL
(JUDGE)
JULY 25, 2011
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