Ram Kumar @ Bhangar vs The State
2013 Latest Caselaw 4688 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 7th OCTOBER, 2013
                              DECIDED ON : 9th OCTOBER, 2013

+                       CRL.A. 642/2000
       RAM KUMAR @ BHANGAR                             ..... Appellant
                        Through :    Mr.Aranyak Pathak, Advocate.

                        versus

       THE STATE                                     ..... Respondent
                        Through :    Mr.Lovkesh Sawhney, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Ram Kumar @ Bhangar (the appellant) and Sanjay Kumar

(since expired) were arrested in case FIR No. 270/99 PS Timar Pur and

sent for Trial under Sections 307/34 IPC on the allegations that on

23.05.1999 at about 08.00 P.M. at jhuggi, Shiv Basti, Mall Road, Timar

Pur, they in furtherance of common intention caused injuries to Munna

with knife in an attempt to murder him. Daily Diary (DD) No. 14A (Mark

'A') was recorded at PS Timar Pur at 08.45 P.M. on getting information

of a quarrel at Shiv Basti. SI Inderjeet Singh and Const. Mohan Lal went

to the spot and came to know that the victim had already been taken to

Trauma Centre by PCR. Investigating Officer recorded Mahesh's

statement (Ex.PW-3/A) and lodged First Information Report. During the

course of investigation, Ram Kumar @ Bhangar and Sanjay Kumar were

arrested. Pursuant to Sanjay Kumar's disclosure statement, crime weapon

was recovered. Statements of the witnesses conversant with the facts were

recorded. The prosecution examined ten witnesses to establish the

charges. In their 313 statements, the accused persons pleaded false

implication. On appreciating the evidence and after considering the rival

contentions of the parties, the Trial Court, by the impugned judgment,

convicted both under Sections 307/34 IPC. By an order dated 22.09.2000,

both were sentenced to undergo RI for four years with fine ` 500/- each.

Being aggrieved, they preferred the appeals. Crl.A. No. 630/2000

preferred by Sanjay Kumar stood abated on his death.

2. It is alleged that prior to the incident, a quarrel had taken

placed between Sanjay Kumar and Mahesh. PW-3 (Mahesh @ Kalia), in

statement (Ex.PW-3/A), disclosed to the police that when he was present

outside his jhuggi at about 08.00 P.M. Sanjay Kumar, Prakash and

Darshan Lal, who had consumed liquor had an altercation with him. In the

scuffle, there were beatings and abuses. Sanjay Kumar threatened him to

'see' and went back to his jhuggi. However, no report about the quarrel

was lodged with the police. Statements of Prakash and Darshan Lal were

not recorded. It is unclear as to what was the genesis of the quarrel and

who caused beatings to whom. In Court statement, PW-3 (Mahesh @

Kalia) did not clarify as to what led Sanjay Kumar and his associates to

quarrel with him and to give abuses. In the cross-examination, he admitted

that in the said altercation, he had also hurled abuses. PW-1 (Munna) did

not depose the time of altercation, however, in the cross-examination, he

disclosed that it took place at 07.00 P.M. in front of his jhuggi and he was

informed by his son Mahesh @ Kalia as he was inside the jhuggi that

time. Apparently, Ram Kumar @ Bhangar was not participant in the said

quarrel and had not extended any threat to Mahesh or his father. There is

divergent version as to when and in what manner, stabbing incident

occurred. The complainant - Mahesh @ Kalia in the police statement

(Ex.PW-3/A) disclosed that after some time both Sanjay Kumar and his

father Ram Kumar @ Bhangar came at the spot. Sanjay had a knife in his

hand and both started giving beatings to him and when his father Munna

intervened to save him, Ram Kumar caught hold of him and Sanjay

Kumar stabbed on his chest and fled the spot. PW-1 (Munna) in his Court

statement gave inconsistent version and deposed that Ram Kumar caught

hold of his son and Sanjay Kumar gave a knife blow on his chest. When

he intervened to save his son, Ram Kumar left him and caught hold of him

and Sanjay Kumar stabbed on his chest. PW-3 (Mahesh @ Kalia) did not

talk of any stab injuries to him at the hands of Sanjay Kumar. He merely

deposed that when Sanjay Kumar and his father came, they wanted to beat

him but his father intervened. He did not testify if any beatings or stab

injury was caused to him by any of the accused persons. He admitted that

he did not sustain injuries and was not medically examined. PW-1

(Munna) and PW-3 (Mahesh @ Kalia) have given contradictory

statements on other facts as to who else was present at the spot at the time

of occurrence; whether there was darkness or not at the spot; whether PW-

1 (Munna) was conscious after sustaining injuries etc. The Investigating

Officer did not explain as to why statements of independent public

witnesses were not recorded at any stage of the investigation. The whole

case of the prosecution is based upon the testimonies of PW-1 (Munna)

and PW-3 (Mahesh @ Kalia) who are father and son and nurtured

grievance for the quarrel earlier taken place between Sanjay and Mahesh.

Ram Kumar was not armed with any weapon and he did not anticipate

Munna's presence there. Ram Kumar had not extended any threat to

Mahesh. Sanjay who inflicted injuries had a vegetable knife and no

repeated stab blows were given. Mahesh was not injured at all. Presence

of Ram Kumar at the spot to lodge complaint with Mahesh's father for the

abuses / beatings earlier given by Mahesh cannot be ruled out. But

definite conclusion cannot be arrived that Ram Kumar @ Bhangar shared

common intention with Sanjay - his son (who has since expired) to inflict

fatal injuries with knife to Munna. The quarrel had taken place with

Mahesh and possibly he could be the target at the hands of Sanjay. There

is no cogent and reliable evidence on record to infer that Ram Kumar @

Bhangar, in a pre-plan, had shared common intention with Sanjay and was

aware that he was having a vegetable knife in his hand. There is no

positive material to indicate that there was pre-arranged plan to murder or

attempt to murder of any person who might intercede to save Mahesh. No

specific role was attributed to Ram Kumar to cause beating or injury to

Mahesh and Munna. Only role attributed to him by PW-1 (Munna) and

PW-3 (Mahesh @ Kalia) is of catching hold of first Mahesh and

thereafter, Munna. In the absence of independent witnesses including

Darshan Lal and Prakash, the testimonies of both these witnesses who

were having inimical terms cannot be trusted and believed to base

conviction with the aid of Section 34 IPC. No weapon was recovered from

him or at his instance. There is no evidence to infer that Ram Kumar was

aware about the place where the knife was allegedly concealed. For the

injuries caused by Sanjay to Munna with a sharp object, the appellant who

was his father cannot be held vicariously liable. PW-10 (SI Inderjeet

Singh), Investigating Officer admitted that when he went to the spot there

were public persons but he did not record statement of any of them. Mere

presence of the appellant at the spot is not enough to establish the guilt.

3. In the light of above discussion, the prosecution has failed to

establish the case against the present appellant beyond reasonable doubt

and he is acquitted. The appeal is allowed; the conviction and sentence are

set aside. Bail bond and surety bond stand discharged. The Trial Court

record be sent back forthwith.

(S.P.GARG) JUDGE OCTOBER 09, 2013/tr