Delhi High Court

Laxman & Anr. vs State Govt. Of N.C.T. Of Delhi on 3 October, 2013

Author: Sunita Gupta

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.A. 426/2001

                                       Date of Decision: 3rd October, 2013

        LAXMAN & ANR.                                       ..... Appellants
                    Through:          Mr. S.C. Phogat, Advocate with
                                      appellants in person.

                          versus

        STATE GOVT. OF N.C.T. OF DELHI            ..... Respondent
                      Through: Ms. Fizani Husain, APP for the State.

        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

:SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 10.05.2001 and the

order of sentence dated 14.05.2001 vide which the appellants were convicted

for offence punishable u/s 307/34 IPC and sentenced to undergo simple

imprisonment for 3 years and fine of Rs.5,000/- each, in default of payment

of fine, to undergo simple imprisonment for 5 months.

2. The prosecution case as revealed from report u/s 173 of the Cr.P.C,

1973 is that on 15.11.1995, on receipt of DD No.82B dated 01.11.1995, SI

Surender Kumar Guliya reached Maharaja Agrasen Hospital where Kamal

Kumar was found admitted in the hospital. He gave a statement, inter alia, to

the effect that he is doing white washing and painting work. For last one

month he was working with Contractor Laxman and his brother Tejpal,

resident of DDA Flats, Ranjit Nagar, near Satyam cinema. In the month of

October 1995, he was doing white washing work at Ranjit Nagar, DDA Flats

on the asking of the aforesaid contractors. On 29.10.1995, he demanded his

dues of Rs.1,400/-. However, they told him to pay the amount whenever the

same will be available, as such he did not go for work on 30/31.10.1995. On

01.11.1995, both the brothers came to his house and told him that they will

settle his dues and as such he should report there for work. He along with his

associate Surender Kumar Yadav who used to reside in his house and was

also doing white wash work went along with the Contractors to DDA flats,

Ranjit Nagar. At about 5 p.m he demanded his payment, then they asked him

to paint the garder. However, he told them that since the duty hours are over,

therefore, he will finish the work on the next day. But they insisted, on which

he told them that in order to paint the garder, there is need of stairs otherwise

it will be dangerous. However, Laxman insisted him to do the painting work

by holding the railing. Despite his refusal, they did not agree and under

compulsion, he started doing the painting work. At about 6 p.m, Tejpal gave

a kick blow on the railing as a result of which he lost his balance. Saria of

the railing got broken as a result of which, he fell down from the third floor

and became unconscious. On the basis of this statement, FIR u/s 288/337

IPC was registered.

3. During the course of investigation, both the accused were arrested and

a charge-sheet was submitted u/s 288/338/307 IPC. Charge for offence u/s

307/34 IPC was framed against both the appellants to which they pleaded not

guilty and claimed trial.

4. In order to substantiate its case, prosecution examined seven witnesses.

All the incriminating evidence appearing against the accused was put to them.

They pleaded their innocence and alleged that due to strained relations, this

false case has been foisted upon them. They have examined two witnesses in

support of their defence. After hearing learned counsel for the parties, vide

impugned judgment, both the appellants were convicted for offence u/s

307/34 IPC and sentenced as stated above. Feeling aggrieved by the same,

the present appeal has been preferred by them.

5. I have heard Mr.S.C.Phogat, learned counsel for the petitioner and Ms.

Fizani Hussain, learned APP for the State and have perused the record.

Learned counsel for the appellant submitted that although the incident is

alleged to have taken place on 01.11.1995, however, the FIR has been

registered only on 15.11.1995. No satisfactory explanation has come on

record for delay in lodging the FIR. It was submitted that Ex.PW6/DA and

Ex.PW6/DB are the first statement of injured and his father wherein they

have stated that while painting the garder, accidentally, his leg slipped as a

result of which Kamal fell down and sustained injuries. Therefore, when on

receipt of information, the SI went to the hospital, he recorded in DD No.91B

that the incident had taken place accidentally and the DD was kept pending.

After 15 days of deliberation, a fresh statement was given by the injured

implicating the appellants. No reliance can be placed on the testimony of

PW3 Surender Kumar Yadav who is a planted witness. He was not present at

the spot. In fact he is the tenant of father of injured and at his behest he has

given the statement, that too on 16.11.1995. It was further submitted that the

statements, Ex. PW6/DA and Ex.PW6/DB were intentionally suppressed and

were not supplied to the accused while supplying copies of the documents u/s

207 Cr.P.C. It was only during cross examination of PW6 that these

documents could be placed on record from police file. The father of the

injured who had taken the injured to hospital has not been examined by the

prosecution. The accused are related to the injured and the relations between

them are strained, as such, in order to take revenge and to extort money from

them, they have been falsely implicated in this case after 15 days of the

incident. Furthermore, as regards accused Laxman is concerned it was

submitted that Section 34 IPC has no applicability, inasmuch as the

allegations, at best, are that he was present at the spot but no overt act is

attributed to this accused as the allegations are confined to Tejpal that he gave

a kick blow on the railing as a result of which he lost his balance and the

sariah got broken and he fell down, as such, he otherwise could not have

been convicted u/s 307 IPC with the aid of Section 34 IPC. As such, it was

submitted that the impugned judgment is liable to be set aside and both the

appellants are entitled to be acquitted. Reliance was placed on State v.

Ramesh, 1998(1) JCC (Delhi) 130; Sajjad Ali Khan @ Sanjay @ Sajjan v.

State of Delhi, 2000(1) JCC(Delhi) 109 and Kanhai Mishra alias Kanhaiya

Misra v. State of Bihar, 2001(2)JCC(SC)5.

6. Learned Public Prosecutor on the other hand supported the judgment of

the learned Trial court and submitted that there is no infirmity in the

impugned order which calls for interference and as such, appeal is liable to be

dismissed.

7. I have given my considerable thoughts to learned counsel for the

parties and have perused the record.

8. PW2 Kamal Kumar is the star witness of prosecution. He unfolded

that he is related to the accused persons who are phoofas of his wife. In

October 1995, he started working with them. He was doing white washing

work while they were Contractors. In the month of October, he demanded his

balance amount of Rs.1,400/- which they refused on the pretext that

whenever the amount will be available, they will pay the same. Therefore, on

30.10.1995 and 31.10.1995, he did not go for his work. On 01.11.1995, both

the accused came to his house and assured him to settle his dues. Therefore,

he along with Surender Yadav, went to House No.411, Ranjit Nagar

belonging to Sh. Ashok Talwar for doing white washing. After finishing his

work, he demanded his dues at about 5 p.m but they told him that they will

make the payment after he paints the iron garder which was in the balcony.

He told them that since duty hours are over, therefore, he will do work on the

next day but they insisted that they will make the payment only when he will

finish the work. He expressed his inability to paint the garder without stairs.

But accused Laxman asked him to paint the garder after holding the railing.

As such, at their insistence, he started painting the garder while standing on

the railing. When he again insisted for stairs then they started abusing him.

Under their threat he started painting the garder. At about 6 p.m, accused

Tejpal asked him to finish the work quickly and gave a kick blow on the

railing as a result of which the saria of the railing got broken and he fell

down as a result of which he sustained injuries. Laxman brought him to his

house. His father took him to the hospital. Accused Tejpal also came and

they did not allow him to get admitted in RML hospital. He was taken to

AIIMS by Inspector Surender. He was made to sign certain blank papers on

the pretext that they will get him admitted in AIIMS. However, the hospital

authorities at AIIMS did not admit him. Thereafter he went to Safdarjung

hospital where after giving first aid he was discharged. Then he got himself

admitted in Maharaja Agrasen hospital, Punjabi Bagh. Thereafter he narrated

the entire incident to his family members who informed the police. Police

came and recorded his statement Ex.PW2/A. Due to sustaining injuries, he

has become 90% handicapped. He made a complaint against Insp.Surender

Kumar Gulia. In cross examination he denied that he was got admitted in

AIIMS by his father or that he was inquired by the duty constable in the

hospital as to how he sustained injuries and then he informed duty constable

Amin Mehek that he fell down accidently while doing white washing or that

his father also confirmed this fact to the duty constable. He also denied that

on receipt of information from Duty Constable, SI Surender Kumar Gulia

and Ct. Rajesh came from P.S. Patel Nagar or that SI Gulia sought the

information from the Doctor regarding his fitness for making the statement

and thereafter his statement was recorded. He admitted his signatures at Point

A on the statement dated 01.11.1995, Ex.PW-2/DA and went on stating that

his signatures were obtained on blank paper. According to him he was taken

to RML hospital by contactor Laxman and his father. He denied the

suggestion that since he informed the official at RML hospital that he had

sustained injuries by falling accidentally from a height, therefore, his MLC

was not prepared at RML hospital. He admitted that he was taken to AIIMS.

However, he denied that any inquiry was made by the Doctor at AIIMS as to

how he sustained injuries. He also denied that inquires were also made from

his father by the doctor, who also reported that due to fall from stairs he

accidentally sustained injuries. He admitted that since no bed was available

at AIIMS, as such he was shifted to Safdarjung hospital. He denied the

suggestion that he lodged the complaint on 15.11.1995 under the pressure of

Labour Union or that in order to take revenge from the accused persons, he

got them falsely implicated in this case.

9. PW3 Surender Kumar Yadav has deposed that on 01.11.1995, he

along with Kamal Kumar had gone to the house of Sh.Ashok Talwar at New

Ranjit Nagar for doing white washing along with contractors Laxman and

Tejpal. After finishing duty hours, Kamal demanded payment but Laxman

insisted that he paint the garder first. Kamal declined by saying that neither

staircase nor jhula was available and, therefore, it will not be possible to paint

the garder but Tejpal abused and threatened to throw him from upstairs.

Under pressure Kamal started painting the garder. Tejpal gave a kick blow

as a result of which saria got broken and due to imbalance Kamal fell down

and became unconscious. He provided milk to Kamal, then he gained

consciousness. By that time Tejpal had left the spot. He with the help of

Laxman removed Kamal to a private hospital. Police came and he informed

about the incident. In cross examination he admitted that he was residing as a

tenant with the father of the injured at the time of incident. He admitted that

after the incident he neither informed the police at 100 no. nor called the PCR

nor went to the police station to lodge the report.

10. PW4 Dr. D.N.Bhardwaj proved the MLC Ex.PW-4/A of injured Kamal

Kumar dated 01.11.1995 prepared by Dr. Elengo. In cross examination he

admitted that whatever is told about the cause of injury either by the patient

or by the person bringing him is recorded in the MLC. He admitted that in

the MLC Ex.PW 4/A, the cause of injury is written as "history of fall from a

height around 6 p.m today". He also certified the opinion, Ex.PW4/B given

by the doctor declaring Kamal Kumar to be "fit for statement".

11. PW5 Dr.Prem Kumar from AIIMS has deposed that as per the casualty

card Kamal Kumar was brought to the casualty of AIIMS with a history of

fall from height around 6 p.m on 01.11.995. The patient was advised

admission in Ortho in the emergency ward. Because of non-availability of

vacant bed in the said ward, the case was referred to Safdarjung hospital.

12. PW-6 SI Manoj Kumar was handed over the investigation of the case

on 01.12.1996. He recorded the supplementary statement of Kamal Kumar

and Surender Kumar Yadav. Thereafter, he prepared the charge-sheet. In

cross examination, he deposed that original signed statement of mark B and

Ex.PW2/A were not handed over by the Investigating Office SI Surender

Kumar Guliya when the investigation was handed over to him. Although he

denied the suggestion that original statement of these witnesses was in the

police file, however, on seeing the police file, he admitted that original

statement of Kamal Kumar and Kanhiya Lal were available which were

exhibited as PW 6/DA and Ex.PW6/DB. He denied the suggestion that

deliberately he did not place on record these documents as these were

favourable to the accused. He admitted that in DD Ex.PW6/DD it is

mentioned that the statement of injured Kamal Kumar as well as his father

were recorded and both of them had stated that injured had fallen due to slip

of his foot while doing white washing.

13. PW7 SI Surender Kumar Guliya is the first Investigating Officer of the

case. He has deposed that on 01.11.1995, on receipt of DD No.82B, he along

with Constable Rajesh went to AIIMS where injured Kamal Kumar was

found admitted in the hospital and his father Kanhaiya Lal was also present

there. He made enquiries and recorded statement of Kamal Kumar and

Kanhiya Lal, Ex.PW6/DA and Ex.PW 6/DB respectively to the effect that

while doing white washing at Ranjit Nagar, Kamal Kumar fell down from the

second floor due to slip of his foot, as such the DD entry was kept for

enquiry. On 14.11.1995 Kanhiya Lal came to the Duty Officer and got

recorded the DD entry wherein he told that his son was admitted in Maharaja

Agrasen hospital and he wanted to give his second statement as his son had

not fallen accidentally but had been pushed while white washing. On

15.11.1995, he went to Maharaja Agrasen hospital and recorded the statement

of Kamal Kumar, Ex.PW2/A and then made endorsement Ex.PW7/A for

registration of case u/s 288/337 IPC and got the case registered. Thereafter

he along with Surender Kumar Yadav went to Ranjit Nagar and at his

instance, prepared the site plan Ex.PW7/B. He arrested both the accused. On

the instructions of SHO on 09.01.1996, he added Section 307 IPC and further

investigation was handed over to SI Manoj Kumar. In cross examination, he

admitted that vide DD No.82B dated 01.11.995, P.S. Patel Nagar,

Ex.PW6/DC, Duty Constable Amin Ul Haq from AIIMS had informed P.S.

Patel Nagar that son of Kanhiya Lal had fallen from a height while doing

white washing and had been admitted by his father. He admitted that this

information was recorded at 11.30 p.m and the DD was marked to him, as

such, he along with Ct. Rajesh Kumar went to hospital. He collected MLC

of injured Kamal Kumar. He made a request vide Ex.PW 4/B seeking

permission of the doctor to record the statement of injured Kamal Kumar and

the doctor declared the injured fit for statement. Thereafter he recorded

statement of Kamal Kumar PW 6/DA and his father Ex. PW6/DB. In view of

the statement of the injured and his father, since the injuries had been

sustained by Kamal Kumar accidentally and no one was at fault, therefore, he

made a noting "Mamla Itfakiya Payaa Jaata Hain". He admitted that from

02.11.1995 to 15.11.1995, he did not receive any intimation from the

authorities of Maharaja Agrasen hospital or the Duty Constable of the said

hospital regarding admission of injured Kamal Kumar and his subsequent

treatment.

14. Accused Tejpal in his statement recorded u/s 313 Cr.P.C has denied the

case of prosecution. According to him, he never undertook any job at flat

No.419, Ranjit Nagar and is unconnected with the said site. Sh. Bal Kishan,

father-in-law of injured Kamal Kumar is his brother-in-law. He was a

mediator in getting Kamal Kumar married with Gita, daughter of Balkishan.

Gita was harassed by her husband Kamal Kumar and her father-in-law

Kanhiya Lal. He advised injured Kamal Kumar and his father not to harass

Gita on account of demand of money, on which he was advised by Kamal

Kumar and his father not to visit them. He and his brother were falsely

implicated in this case due to enmity.

15. Accused Laxman also took the same plea that due to inimical relations,

he has been falsely implicated in this case. He further stated that he is a daily

wager and used to sit at Shankar Road Chowk. He along with injured Kamal

Kumar was engaged in the morning on 01.11.1995 from Shankar Road

Chowk as daily wage earner by one Ashok K. Talwar for white washing his

house. He worked till 5 p.m. After taking his wages from Ashok Talwar he

went to his house. At about 5.45/6 p.m, one person came to his house and

informed him that his relative had fallen while white washing the house. He

rushed to the said flat of Ashok Talwar and found Kamal Kumar sitting on

the ground floor below the flat and Ashok Talwar was also standing there.

Ashok Talwar informed that Kamal Kumar had fallen while white washing

and he should take Kamal Kumar to his house. He took Kamal Kumar in a

taxi to the house of Kanhaiya Lal where Kamal Kumar informed his father

that he had fallen while doing white washing as his foot had slipped. Kanhiya

Lal asked him to accompany him to Wellingdon hospital. Kanhiya Lal took

the injured inside R.M.L.Hospital. Thereafter Kamal Kumar was taken to

AIIMS by Kanhiya Lal. Thereafter Kanhaiya Lal came out and informed that

since there was no bed available, as such Kamal Kumar was to be shifted to

Safdarjung hospital. After Kamal Kumar was taken to Safdarjung hospital he

returned back to his house. He has been falsely implicated in this case at the

instance of Kanhiya Lal, Kamal Kumar and Labour Union.

16. They examined DW1 Jaswant Singh, Record Clerk from RML hospital

who brought the record pertaining to Kamal Kumar with the alleged history

of fall and, therefore, it was a non-MLC case. DW2 J.B.Bhardwaj, Medical

Record Technician from Safdarjung hospital also brought the register. At

sl.no.21071 dated 01.11.1995, Kamal was brought for treatment in the

hospital and there is a mention that the patient was brought with history of

fall from first floor.

17. The aforesaid evidence coming on record clearly reflects that two sets

of evidence are forthcoming, inasmuch as after Kamal Kumar sustained

injuries initially he was taken to R.M.L.hospital. However as deposed by

DW1 it was a case of non-MLC as the patient was brought to the hospital

with history of fall only. Thereafter the injured was taken to AIIMS where

vide DD No.82B Ex.PW6/DC Duty Constable Amin Ul Haq informed P.S.

Patel Nagar that one Kamal Kumar, son of Kanhaiya Lal had fallen from a

height while doing white washing and had been admitted by his father. On

receipt of this information, DD No.82B was recorded and assigned to SI

Surender Kumar Guliya who went to AIIMS where he found injured Kamal

Kumar admitted in the hospital and he also met his father Kanhaiya Lal. SI

Surender Kumar collected MLC of injured Kamal Kumar. At the same time

in order to record statement of injured, he moved an application Ex.PW 4/B

seeking permission of the doctor to record his statement. After the doctor

declared the injured fit for statement, he recorded statement of injured Kamal

Kumar Ex.PW6/DA wherein he stated that while doing white washing wok,

he accidentally fell from top and sustained injuries. Similar statement was

made by his father Kanhiya Lal, Ex.PW6/DB. Since nobody was found at

fault, therefore, the DD was kept pending. Since no bed was available in

AIIMS, as such, as deposed by Dr. Prem Kumar PW5, the injured was

referred to Safdarjung hospital. It is the case of injured himself that after

giving first aid and putting plaster, he was discharged from Safdarjung

hospital. Therefore, he got himself admitted in Maharaja Agrasen hospital,

Punjabi Baagh. During the period 02.11.1995 till 14.11.1995, no information

was given to the police station regarding admission of Kamal Kumar in

Maharaja Agrasen hospital. It was only on 14.11.1995 Kanhaiya Lal went to

police station and informed the Duty Officer regarding admission of his son

in Maharaja Agrasen hospital and that he wanted to give another statement

then SI Surender Kumar Guliya went to Maharaja Agrasen hospital and

recorded statement of Kamal Kumar, Ex.PW 2/A where for the first time he

levelled allegations against the accused persons to be responsible for his fall

from third floor. As such, there is substantial delay in lodging the FIR.

18. In Sajjad Ali Khan(supra), reference was made to Mehraj Singh v.

State of M.P, 1994 SCC(Crl.)1390 where it was held:

"that the object of insisting upon prompt lodging to the F.I.R is to obtain the earliest information regarding the circumstances in which the crime was committed. Delay in lodging the F.I.R often results in embellishments, which is a creature of an afterthought. On account of delay, the F.I.R not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story".

19. Relying upon this authority, in Sajjad Ali Khan(supra), delay of one

day in lodging the FIR was considered to be fatal in the absence of furnishing

any explanation by prosecution about the delay in lodging the FIR. It was

observed that this circumstance to a great extent probablises the case of

defence that FIR was lodged after due deliberation. In State v

Ramesh(supra), delay of 13 hours in lodging the FIR was considered to be

fatal by observing that possibility of lodging FIR after consultation cannot be

brushed aside. Similarly in Kanhai Mishra(supra), delay of two hours in

lodging FIR was considered to be an inordinate delay which was fatal to the

prosecution case.

20. In the instant case, there is delay of about 14 days in lodging the FIR

for which no satisfactory explanation is given. Learned Trial Court observed

that since as per the deposition of injured Kamal Kumar, he was satisfied with

the treatment in Maharaja Agrasen hospital, therefore, lodging of FIR at that

stage cannot be considered to be fatal. The mere fact that the injured was

satisfied with the treatment cannot be made a ground for not lodging the

complaint at the earliest available opportunity, more particularly when, it is

not the case of the injured that he was not fit for making statement prior

thereto. Rather it has come on record that on the day of incident itself the

patient was fit for statement and, therefore, SI Surender Kumar Guliya

recorded his statement after obtaining the requisite certificate from the doctor

wherein he stated that due to accidental fall from a height he sustained

injuries and nobody was at fault. Similar statement to this effect was made by

his father. Although a plea has been tried to be taken by the injured that his

signatures were obtained on blank paper but there is nothing on record to

show that at the earliest available opportunity any complaint was made either

by the injured or his father that their signatures were obtained on blank paper

by the Investigating Officer of the case. As such, possibility of the delay of

14 days in lodging the FIR after due deliberation cannot be ruled out. The

plea of the accused that the same was due to inimical relations between the

injured and the accused cannot be brushed aside. It is not in dispute that the

injured and the accused persons are distantly related to each other. In fact,

accused Laxman was mediator to the marriage of Kamal Kumar with Gita

who was the daughter of Bal Kishan, his brother-in-law. According to the

accused, since Gita used to be harassed by Kamal Kumar and his father

Kanhaiya Lal, therefore, he had advised them not to harass Gita whereupon

Kamal and his father asked him to not visit their house again. This has been

attributed as the reason for false implication of the accused in this case. The

fact that after making the initial statement Ex.PW6/DA and PW 6/DB

wherein, neither the injured nor his father levelled any allegations against the

appellant and it was only after 14 days of the incident that their names figured

in the statement Ex.PW2/A which culminated in registration of FIR against

the accused persons, possibility of manipulation and embellishment cannot be

ruled out.

21. As regards testimony of PW3 Surender Kumar, same does not inspire

confidence inasmuch as, according to this witness, he was present along with

Kamal Kumar on the day of the incident. However, admittedly, neither he

informed the police nor went to police station to lodge any report. In fact till

15.11.1995 he did not give statement to the police. It is not in dispute that he

was a tenant in the house of Kanhaiya Lal, father of the injured and even on

the day when he came to depose before the Court he had come with Kanhiya

Lal only. That being so, his presence at the spot is not proved beyond

reasonable doubt. Father of injured Kanhiyalal whose statement Ex.PW6/DB

was recorded by the Investigating Officer of the case and who took his son to

hospital, has not been examined by prosecution for reasons best known to

them.

22. In fact two sets of evidence are forthcoming. One is the initial

statement made by the injured and his father where they did not level any

allegations against anybody and in fact alleged that it was an accidental fall

due to which reason, the DD was kept pending. On the other hand, after a

gap of 14 days, the injured gave a statement implicating the accused persons.

The very fact that two sets of evidence are forthcoming makes it clear that

prosecution has not proved the guilt of accused beyond reasonable doubt and

the accused is entitled to get benefit of the same. It is the settled principle of

criminal jurisprudence that the burden of proving the guilt of accused is

squarely upon the prosecution and in case of any doubt, accused is entitled to

get benefit of the same.

23. In State of Uttar Pradesh vs. Nandu Vishwakarma, 2009(4) JCC

2525, Supreme Court held:

"23. It is settled principle of law that when on the basis of evidence on record two views could be taken- one in favour of the accused and the other against the accused- the one favouring the accused should always be accepted."

24. Similar view was taken in K.P.Thimmappa Gowda v. State of

Karnataka, AIR 2011 SC 2564, where it was held that in criminal case, the

rule is that the accused is entitled to the benefit of doubt. If the Court is of the

opinion that on the evidence two views are possible, one that the appellant is

guilty, and the other that he is innocent, then the benefit of doubt goes in

favour of the accused.

25. In view of the aforesaid legal position, since in the instant case, two

views are possible, one favouring the appellant and another against them, as

such, in view of the established principles of criminal jurisprudence, the

appellants are entitled to the benefit of doubt.

26. The submission of learned counsel for appellant that accused Laxman,

even otherwise, could not have been convicted u/s 307 IPC with aid of