State Of Nct Of Delhi vs Bishan Singh & Ors.
2013 Latest Caselaw 2745 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.L.P. 429/2012
                                               Date of Decision: 03.07.2013

       STATE OF NCT OF DELHI                    ..... Petitioner
                    Through: Mr. Rajesh Mahajan, Addl. Standing
                             Counsel
                    versus

       BISHAN SINGH & ORS.                               ..... Respondents
                     Through:         None.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE INDERMEET KAUR

KAILASH GAMBHIR, J.

1. The present Criminal Leave to Appeal has been preferred by the

petitioner/State under Section 378 (4) Cr.P.C. to challenge the judgment

dated 17.12.2011 passed by the learned Additional Sessions Judge, FTC,

New and South East District, Patiala House Courts, Delhi thereby acquitting

the accused persons of the charges framed against them under Sections

498A/302/34 IPC.

2. The facts and circumstances which gave rise to the registration of the

case against the accused persons as per prosecution are that on 23 rd August,

2002, an information vide DD No.29 was recorded in PP Madangir at about

11.05 p.m. that the in-laws had burnt their daughter-in-law to death (Sasural

walo ne bahu ko jalakar maar dala) at H.No.B-128 Shiv Park Near

Khanpur. This DD was handed over to ASI Jaipal Singh who reached at the

above address along with Constable Rajbir and Constable Dayanand where

they came to know that one lady was removed to hospital in burnt condition.

Leaving Constable Dayanand at the spot, IO reached the hospital and

collected the MLC of deceased Smt. Jaswati. The IO recorded her statement

after she was declared medically fit for giving her statement. In her

statement, deceased Smt. Jaswati stated that she was married to Rajesh about

ten years back and her father, mother-in-law, brother-in-law & sister-in-law

used to harass her for demand of dowry. She also stated that her husband

used to treat her properly. She further states that the light of her room was

cut by her brother-in-law and when she came out of the room her sister-in-

law and brother-in-law poured kerosene oil on her body and her father and

mother-in-law caught hold of her and brother-in-law lit fire to her body. She

further stated that some neighbour took her to the hospital. This dying

declaration of deceased Smt. Jaswati was proved on record as Ex.PW-23/B.

Based on the said dying declaration, the IO prepared Rukka and got the FIR

registered against the accused persons under Sections 498A/302/34 IPC.

After completion of the investigation, challan under Sections 498A/302/34

IPC was filed in the Court. The charges were framed under the said

provisions against the accused persons to which they pleaded not guilty and

claimed trial. The prosecution examined as many as 28 witnesses. The

statements of accused persons were recorded under Section 313 Cr.P.C. in

which they had pleaded their innocence. In defence, the accused persons

had examined four witnesses. After taking into consideration the testimonies

of prosecution witnesses, defence witnesses and the material placed on

record, the Additional Sessions Judge had passed a detailed order thereby

acquitting all the accused persons from the charges framed against them.

Feeling aggrieved by the said order of acquittal, the petitioner/ State has

approached this Court to seek leave to appeal to challenge the said order.

3. Addressing arguments in support of criminal leave to appeal,

Mr.Rajesh Mahajan, Additional Standing Counsel for State, contends that

the learned Trial Court failed to properly appreciate the evidence on record

and wrongly arrived at the decision of acquitting the accused persons.

Learned counsel further contends that the dying declaration of the deceased

proved on record as Ex.PW-23/B recorded by ASI Jai Pal Singh PW-23 was

sufficient to convict the respondents but the learned Trial Court has

discarded the said dying declaration of the deceased without properly

appreciating the legal position. Learned counsel further submits that the said

dying declaration Ex.PW-23/B was recorded by PW-23 upon proper

certification of fitness being granted by the attending doctor and the said

certificate of fitness was duly proved on record in the evidence of PW-18.

Learned counsel states that the said witness PW-18 in his deposition stated

that the whereabouts of the said attending doctor were not known to him.

Learned counsel also argued that the learned Trial Court erred in not relying

on the ocular testimony of Kumari Bharti PW-6, eyewitness of the incident.

Learned counsel also argued that the learned Trial Court failed to appreciate

the fact that there are bound to occur some discrepancies or contradictions in

the testimonies of the witnesses as such witnesses deposed in Court after a

lapse of some time period, and therefore, such minor contradictions should

not affect the substratum of the prosecution case.

4. Based on the above submissions, learned Additional Standing Counsel

for the State has prayed for the grant of criminal leave to appeal so as to

challenge the said order of acquittal.

5. We have heard learned counsel for the parties at considerable length

and given our thoughtful consideration to the arguments advanced by them

and we have also gone through the judgment passed by the learned Trial

Court and the other material placed on record including the testimonies of

the prosecution and the defence witnesses.

6. It is a settled legal position that in an appeal against an order of

acquittal, the Appellate Court should not normally interfere with the findings

of fact arrived at by the learned Trial Court unless the reasoning given by the

learned Trial Court is perverse or illegal on the very face of it. The Appellate

Court should also bear in mind that with the acquittal of the accused persons

by the learned Trial Court, the presumption of innocence of the accused

persons has been given the legitimacy. It is also a settled legal position that

where there is possibility of arriving at two different conclusions on the

basis of the evidence on record, the Appellate Court should not disturb the

finding of acquittal arrived at by the Lower Court merely because the other

possible view is a preferred view.

7. In the aforesaid background of the legal position, let us deal with the

contentions raised by the learned Additional Standing Counsel for the State

to assail the finding of the learned Trial Court. The first contention raised by

the learned counsel for the petitioner is that the dying declaration of the

deceased was duly proved on record in the evidence of PW-23 ASI Jai Pal

Singh and he had recorded the said dying declaration after the deceased was

declared medically fit by the attending doctor, Dr.M.V.Shekhar of

Safdarjung Hospital whose certification was proved on record as Ex.PW-

23/C. This testimony of PW-23 was disbelieved by the learned Trial Court

not only because of many contradictions in his cross-examination but

because of deposition of PW-26 SI Padam Singh Rana who in his cross-

examination also claimed that he had recorded the statement of deceased

which was proved on record as Ex.PW-23/B. He also deposed that ASI was

slow and was having difficulty in writing so he had assisted him being

present in the hospital. PW-16 - Constable Rajbir in his deposition has

stated that he alongwith ASI Jaipal (PW-23) reached SJ Hospital, where

deceased Smt. Jaswanti was found admitted and was declared fit for

statement by the doctor. He further deposed that ASI Jaipal recorded her

statement and made his endorsement and thereafter he took the rukka and

got the case registered and came back at the spot, as per the directions of

ASI Jaipal, the Investigating Officer of this case. This witness also nowhere

disclosed the presence of SI Padam Singh Rana (PW-26) at the time of

recording of the statement of the deceased. It is also a matter of record that

no endorsement was made by ASI Jaipal (PW-23) either on PW-23/B or

PW-23/C that he got recorded the same from SI Padam Singh Rana (PW-

26). During the course of hearing Mr. Rajesh Mahajan, Additional Standing

Counsel for the state claimed that the statement of the deceased was in the

handwriting of ASI Jaipal Singh (PW-23) and not of SI Padam Singh Rana

(PW-26). It has also come on record that investigation of the said case was

taken over by SI Padam Singh Rana (PW-26) from ASI Jaipal Singh (PW-

23) on 24th August 2002.

8. It is quite intriguing to find that PW-16, PW-23 and PW-26 have not

taken a uniform stand so far recording of the dying declaration of the

deceased was concerned. It is an admitted position that no other public

witness was associated at the time of recording of the said dying declaration

and no reasons have been explained by the prosecution for not joining any

public witness at the time of recording of the dying declaration of the

deceased. It is beyond our comprehension to find that the signatures of the

doctor M.V.Shekhar on the certificate of fitness proved on record as Ex.

PW-23/C were not confronted to PW-18, S.S.Rawat, record clerk summoned

from the hospital. It is also a matter of record that the said doctor was not

produced by the prosecution and the ground taken for such non-production

of the doctor was that the whereabouts of the doctor were no more available

with the hospital. No efforts were made by the prosecution to produce the

said doctor in any event. The prosecution even failed to prove on record the

said certificate of fitness by not confronting the signatures of the doctor to

the said witness PW-18. In the light of such material contradictions and lack

of evidence, the learned Trial Court correctly held that Ex.PW-23/B cannot

be treated as dying declaration as the same lacks corroboration and this

Court does not find any perversity or illegality in the said reasoning given by

the learned Trial Court which is based on proper appreciation of the facts

and evidence placed on record.

9. Other contention raised by the learned counsel for the petitioner is that

the learned Trial Court failed to give due weightage to the ocular evidence of

PW-6, the eyewitness of the incident. Undoubtedly, PW-6 is the daughter of

the deceased and was present at home at the time of the incident. The

statement of this witness under Section 161 Cr.P.C. was recorded by the

police on 26.08.2002. In her statement, PW-6 stated that she was sleeping at

the time of the incident and was woken up by her brother. In her deposition

before the Court, she had changed her version but again in her cross-

examination she could not stick to her stand. After taking into consideration

the entire deposition of PW-6, the learned Trial Court found that PW-6 had

deposed falsely at the instance of her maternal grand parents and her uncle

Hemu and that she had not seen the incident of burning of her mother,

although she was introduced by the prosecution as an eyewitness. This

reasoning of the learned Trial Court is in consonance with the clear

contradiction in the stand of PW-6 as she took contrary stands in her

examination-in-chief and cross-examination, making her deposition totally

untrustworthy and unreliable.

10. Before we conclude, we are constrained to observe that the

prosecution has not performed its duty in a fair and honest manner. The

conflicting stands taken by Constable Rajbir (PW-16), ASI Jaipal Singh

(PW-23) and SI Padam Singh Rana (PW-26) have ultimately resulted in

giving a benefit of doubt to the said accused persons. Such position could

have been different, had these police officials acted diligently and honestly

in conducting the investigation and in giving their statements before the trial

court. Therefore, we direct the Commissioner of Police to hold an inquiry

into the role of Constable Rajbir (PW-16), ASI Jaipal Singh (PW-23) and SI

Padam Singh Rana (PW-26) and take suitable action against them in

accordance with law and settled procedure. The compliance report be filed

by the Commissioner of Police within a period of one month from the date

of this order.

11. In the light of the above discussion, we are of the view that the

petitioner is not entitled to grant of criminal leave to appeal to challenge the

said order of acquittal. The petition is devoid of any merits and the same is

hereby dismissed.

KAILASH GAMBHIR, J.

INDERMEET KAUR, J.

JULY 03, 2013 v