Delhi High Court
State vs Naveen on 5 September, 2011
Author: S.Ravindra Bhat
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing & decision: 5th September, 2011
+ CRL.L.P. 119/2011
STATE ..... Petitioner
Through: Ms. Richa Kapoor, APP for the State.
versus
NAVEEN ..... Respondent
Through: None.
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 prefer an appeal by this petition against the judgment and
order of learned Addl. Sessions Judge dated 19.10.2010 in SC No.82/2009
acquitting the Respondents (hereinafter referred to as „accused‟) for the offences
punishable under Section 304/34 IPC.
2. Briefly the prosecution case against the Respondent was that one Jagdish Prasad
was attacked on 08.09.2007 at 10:30 P.M. when he had collapsed on a Chabutara
in front of his house after dinner. The prosecution case concededly was that every
family member was inside the house; it was alleged that victim had old enmity
with Chinu who attacked him with some sharp edged object on hip, cheek and
arm. Upon informing the police, the victim was taken first to DDU Hospital
where the MLC Ex. PW-4/L was recorded. Subsequently, he was shifted to RML
Hospital and again brought back to DDU Hospital. The prosecution relied on the
testimonies of about 13 witnesses; primarily the material witnesses in this case
were PW-1, PW-2 and PW-3. The victim died on 10.09.2007; the prosecution
alleged that before his death, statement was recorded; same was produced in court
and was sought to be proved; in that statement, he implicated that the
Respondents have inflicted injuries upon him.
3. The Trial Court after considering the submissions of the parties, taking into
account the material led before it, concluded that the Respondents were not guilty
and the prosecution could not bring home the charges beyond reasonable doubt.
Some of the material aspects, which in holding the impugned judgment were as
follows: -
(i) Discrepancies in the statements of PW-1, PW-2 & PW-3, which was both
internal as well as inter se, the prosecution case was concededly that none
of them has actually witnessed the incident.
(ii) All the said three witnesses did not support the prosecution case at all. As
far as the involvement of Respondent Nos.2 & 3 were concerned, the Trial
Court admitted the prosecution story about the recording of the statement
by the injured on 10.09.2007.
4. Learned APP argued that this is an appropriate case where the court should grant
leave, having regard to the overall facts and circumstances. It was submitted that
since the deceased was taken to the Hospital at the earliest available opportunity
and his statement was recorded, which was in all material aspects corroborated by
the testimonies of PW-1, PW-2 & PW-3 (showing motive of the Respondent),
these should be considered while granting the leave to appeal. We have gone
through the Trial Court record. The core of the Trial Court‟s reasoning in
concluding that the prosecution could not prove its case, may be found from the
following extracts of the impugned judgment: -
"26. On the other hand the counsel for the accused submitted
that PW-1 did not see accused causing injuries. According to PW-
1 he simply saw the accused running having knife in his hand, after
causing injuries to his father. When the witness was not present at
the spot and came outside only on hearing the noise of his father,
there was no occasion for the witness to see accused causing
injuries his father.
27. The counsel for the accused further urged that PW-1 to
PW-3 did not support the prosecution regarding involvement of
accused Mahesh and Surender either in examination in chief or in
cross-examination by Ld. APP.
28. The counsel for the accused drew my attention towards lot
of improvement in statement of PW-2 over her statement u/s 161
Cr.P.C. The same makes the statement of PW-2 un-reliable.
29. The counsel for the accused did not miss to argue that all
the three PWs viz PW-1 to PW-3 admitted that Pawan brother of
PW-1 was facing trial for murder of Umesh/ Jeeja of accused
Naveen. The same establish motive for false implication of the
accused.
30. The counsel for the accused also urged that PW-1 to PW-3
consistently admitted that deceased was suffering from Asthma,
lungs problem and heart problem. Thus the possibility of natural
death cannot be ruled out.
31. I find considerable force in the arguments of counsel for
the accused. As regards statement of deceased it may be observed
that the same is short of dying declaration. The same was given
two days after the incident. Permission of the Doctor was not
obtained at the time of recording said statement. Earlier
permission from doctor of different hospital is of no use because at
that time the injured did not give any statement. The statement has
been recorded by IO only and neither attested by the doctor nor
was got recorded before Magistrate.
32. To conclude I find that case of the prosecution is not free
from doubt. Benefit of doubt is given to the accused and they are
acquitted. File be consigned to Record Room."
5. We also notice that in this case the first MLC Ex. PW-4/L, recorded injuries on
the hip, face and hand. However, the postmortem report did not substantiate it, at
least as far as the injury on the arm was concerned. The prosecution alleged that
the second MLC is Ex. PW4/M. Strangely, this MLC is dated 09.09.2007. The
prosecution case was further that after treatment the victim was discharged. He
apparently reported later of abdomen pain. We notice that postmortem report
Ex.PW-4/A listed yet another injury on the abdomen i.e. "stitched surgical
wound". The prosecution inability to explain this wound and absence of its
mention in the first available document Ex. PW-4/L casts a serious doubt on its
entire version. Since, none of the family members actually witnessed the
incident; the court did not believe the prosecution story of declaration on
10.09.2010. We also notice that when the statement was recorded on 10.09.2007,
the victim‟s ability to record it was not certified unlike on 08.09.2007 when he
was fit to record his statement, as mentioned explicitly in Ex. PW-4/L.
6. It has been often said that High Court has to be satisfied while considering
petition for leave to appeal preferred by the State against a judgment of acquittal
that there exist substantial and compelling reasons to adopt such course of action;
which includes; serious lapses, overlooking of material facts or wrong application
of law in appreciation of evidence. Having regard to this standard, we are of the
opinion that the Trial Court‟s reasoning acquitting the Respondent in his case is
sound and does not call for any interference. The petition is, therefore, dismissed.
S. RAVINDRA BHAT, J.
G. P. MITTAL, J.
SEPTEMBER 5, 2011
hs
