Bhola Shanker & Ors. vs The State (N.C.T. Of Delhi)
2014 Latest Caselaw 852 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 13th JANUARY, 2014
                               DECIDED ON : 14th FEBRUARY, 2014

+                            CRL.A. 24/2011

       BHOLA SHANKER & ORS.                  ....Appellants
               Through : Ms. Neha Gupta, Advocate.

                                   versus

       THE STATE (N.C.T. OF DELHI)            ....Respondent
                Through : Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. Bhola Shanker (A-1) and Sher Singh (A-2) impugn a

judgment dated 29.11.2010 of learned Addl. Sessions Judge in Sessions

Case No. 221/2008 arising out of FIR No. 1039/2007 PS Sultan Puri by

which they were convicted under Section 304 part-II IPC. By an order on

sentence dated 01.12.2010, they were awarded RI for five years with fine

` 5,000/-, each.

2. Allegations against the appellants in the charge-sheet were

that on 25.06.2007 at about 03.00 P.M. at Jhandewala park, P-1 Block

jhuggi, Sultan Puri, they in furtherance of common intention inflicted

injuries to Kailash Singh. The police machinery was set in motion when

Daily Diary (DD) No. 51B (Ex.PW-12/A) was recorded at PS Sultan Puri

at 03.50 P.M. after getting information of a 'quarrel' at the spot. The

investigation was assigned to HC Hattu Ram who with Const. Shashi

Kumar went to the spot and came to know that the victims had already

been taken by Police Control Room (PCR) to Sanjay Gandhi Memorial

Hospital. After recording Dropti's statement (Ex.PW-2/A), he lodged First

Information Report under Sections 323/308/34 IPC. Kailash Singh

succumbed to the injuries on 02.07.2007 and Daily Diary (DD) No. 25B

(Ex.PW-13/A) was recorded. Section 304 IPC was added in the FIR.

During the course of investigation, statements of the witnesses conversant

with the facts were recorded. The accused persons were arrested and

pursuant to A-1's disclosure statement crime weapon i.e. danda was

recovered at his instance from his house. After completion of

investigation, a charge-sheet was filed against the appellants; they were

duly charged and brought to trial. The prosecution examined nineteen

witnesses to establish their guilt. In 313 statements, the accused persons

pleaded false implication. On appreciating the entire evidence and after

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, held both the appellants perpetrators of the crime

mentioned previously. Being aggrieved and dissatisfied, they have

preferred the appeal.

3. I have heard the learned counsel for the parties and have

examined the record. Kailash Singh, Dropti and Ravi suffered injuries in

the occurrence and were medically examined at Sanjay Gandhi Memorial

Hospital. PW-1 (Dr.Binay Kumar) medically examined Kailash Singh and

prepared MLC (Ex.PW-1/A) on 26.06.2007. As per his testimony, the

patient was 'fit for statement'. No explanation was offered by the

Investigating Officer as to why the First Information Report was not

lodged after recording his statement. MLC (Ex.PW-1/A) records an

endorsement 'unfit for statement'. However, it is unclear as to who had

declared him 'unfit for statement' or when Kailash Singh came to senses

during stay at the hospital. The name of the doctor who had declared him

'unfit for statement' and the time when he was so declared do not find

mention in the MLC. Rather it records that the patient was 'conscious'

when medically examined. MLCs (Ex. PW -10/J of Dropti) and (Ex.PW-

10/K of Ravi) were prepared by Dr.Arun who was not examined. PW-10

(Dr.Manoj Dhingra) who conducted post-mortem examination on the

body of Kailash Singh proved the said MLCs. The appellants were not

charged for inflicting injuries to Dropti and Ravi.

4. Dropti, deceased's wife, in her statement (Ex.PW-2/A)

recorded at the first instance soon after the occurrence in the hospital

implicated only A-1 for inflicting a danda blow on the head of her

husband Kailash Singh. She further disclosed that when she and her son

Ravi intervened to rescue Kailash Singh, they were beaten and injured by

the appellants. She further stated that the occurrence took place on

25.06.2007 when she had gone to her sister Somwati (A-1's wife) to

enquire about the whereabouts of her son Hemraj and she started hurling

abuses at her to which she objected. At that juncture, her husband (A-1)

and son (A-2) arrived at the spot and started beating her. On her raising an

alarm, her husband Kailash and son Ravi came for her rescue. On that, A-

1 and A-2 brought dandas. She made telephone call at 100 from PCO.

While appearing as PW-2, in her Court statement, she made vital / major

improvements and deviated from her earlier version given to the police. In

her Court statement, she gave an entirely different version as to how the

confrontation had taken place and who were the assailants. She deposed

that on the day of occurrence, when she was going to the market to

purchase a 'mutki', A-1 (her sister's husband) met her. When she was

talking with him, Meena (A-1's daughter) came and hit her with her fist

on her mouth and broke her teeth. When she enquired from A-1 the

whereabouts of her son, Seema, Pinki, Kamlesh, Somwati and Sher Singh

(A-2) arrived at the spot and started beating her. Somwati (A-1's wife) hit

her on the head with a stone due to which she got 13 stitches. Her

neighbour Saroj raised an alarm and her daughter Pushpa, husband

Kailash Singh and son Ravi came there to save her. In the meanwhile,

Gopal also came there. Then all of them i.e. Bhola (A-1), Sher Singh (A-

2), Seema, Pinki, Kamlesh, Somwati, Gopal and Meena started beating

her daughter and husband. Her daughter lied on her father to save him.

Gopal caught hold of the hands of her husband and A-1 hit him with a

'danda' as a result of which he (Kailash Singh) received injuries on his

head and fell down. A-2 also hit him with a rod on his head, chest and

other parts of the body. Her husband became unconscious and was taken

to Sanjay Gandhi Memorial Hospital by PCR where he expired after eight

days. She further deposed that Ravi was hit with a danda on his head by

A-2. Police recorded her statement (Ex.PW-2/A). In the cross-

examination, she disclosed that her statement was recorded by the police

on the same day. She was confronted with her statement (Ex.PW-2/A) on

the facts which were narrated for the first time in the Court and did not

find mention in her previous statement (Ex.PW-2/A). She did not offer

any reasonable explanation for the omissions to record all these facts in

her initial statement (Ex.PW-2/A). She denied the suggestion that on the

day of occurrence, her husband was heavily drunk and sustained injuries

due to fall.

5. The investigating agency during investigation did not find

involvement of any other assailant besides the appellants. Somwati was

put in column No.2 of the charge-sheet and the Trial Court did not take

cognizance against her for committing any offence. In her statement

(Ex.PW-2/A), the complainant did not attribute any role to Kamlesh,

Seema, Gopal, Pinki and Meena. She even did not allege their presence at

the crime scene. Only for the first time in her deposition during trial, she

came up with a new version that A-2 hit her husband on his head, chest,

etc. with an iron rod. She also implicated Seema, Pinki, etc. for causing

injuries to her daughter and husband. Apparently, the complainant did not

present true facts and attempted to implicate all the family members. The

medical evidence is at variance. In the MLC (Ex.PW-10/J), there is no

mention that the patient Dropti had broken her teeth or got 13 stitches due

to the injuries on her head. MLC (Ex.PW-10/J) records that the injuries

sustained by her (Dropti) were 'simple' in nature. Only one CLW on

forehead 2.5 x 0.5 x 0.5 was found on her body and she was discharged

after first aid. Pushpa was not taken for medical examination and belies

her statement that she was also injured in the occurrence. PW-3 (Ravi),

Dropti's son, has given inconsistent and conflicting statement regarding

the role played by the appellants. In his Court statement, he deposed that

on 26.06.2007, her mother Dropti was about to leave for market at about

03.00 P.M. when she enquired from A-1 about his elder brother Hemraj,

A-1 and A-2 grabbed her and started beating. On hearing her cries, he

came out of the house and saw both of them beating her mother. He and

his father Kailash Singh reached the spot. A-1 gave an iron rod blow on

his head near right ear. A-2 inflicted a blow to his father with a 'balli' on

the head. Due to iron rod blow, he fell down. A-2's sister Meena gave

beatings to his elder brother Vikky with a rod. After the beating, the

accused persons fled the spot. Police was called at 100. This witness was

confronted with the statement (Ex.PW-3/DA) given to the police under

Section 161 Cr.P.C. where he had not mentioned the facts deposed for the

first time before the Court. PW-3 (Ravi) did not implicate A-1 for

inflicting 'danda' blow on the head of his father Kailash Singh. He also

did not depose about the presence of Somwati, Kamlesh, Pinki and Seema

at the spot. Ravi was medically examined vide MLC (Ex.PW-10/K) and

the nature of injuries was described 'simple'. Vikky was not taken for

medical examination and falsifies his claim that A-2's sister Meena

caused injuries to him with a rod. PW-4 (Vikky) has not supported the

prosecution on material aspects and has not corroborated the version

narrated by PW-2 (Dropti) or PW-3 (Ravi). He merely deposed that on

25.06.2007 in between 02.30 P.M. to 04.00 P.M. he was sleeping at his

house when neighbourers came, woke him up and told that his mother,

father and brother Ravi were being beaten by Sher Singh, Bhopal, Meena,

Suhaga and Bhola Shanker. When he went to the spot they all ran away

from there. PW-4 (Vikky) did implicate any of the appellants for inflicting

injuries in his presence to his father and mother. Needless to say, all the

prosecution witnesses have given contradictory, inconsistent and

conflicting account of the incident. Their statements do not establish

beyond reasonable doubt as to who was the actual culprit who inflicted a

specific blow with a specific weapon and to whom.

6. During investigation, only danda (Ex.P-1) was allegedly

recovered pursuant to A-1's disclosure statement on 26.06.2007. Again,

there are divergent versions on this aspect. Complainant Dropti did not

depose in her examination-in-chief if 'danda' (Ex.P-1) was recovered in

her presence. PW-9 (Const. Daya Ram) deposed that A-1 was arrested on

the pointing out of the complainant on 26.06.2007 and pursuant to his

disclosure statement danda (Ex.P-1) was recovered from his house. PW-

18 (ASI Devender Joshi), the Investigating Officer, disclosed that A-1 was

arrested on the basis of secret information at Sultan Puri Bus Terminal.

No independent witness was associated at the time of recovery of the

danda (Ex.P-1) which had no specific mark of identification. No blood

was detected in the FSL report on the 'danda'. Allegedly, it was lying

inside the room by the side of the door in the house which was not in the

exclusive possession of A-1. The recovery of danda (Ex.P-1) is

discrepant. During investigation, no attempts were made to join any

independent witness from the locality. Saroj, the complainant's neighbour,

who allegedly raised alarm was not examined. Pushpa and Vickky,

daughter and son of the complainant, who allegedly got injuries, were not

medically examined. Pushpa was not produced as witness before the

Court. The investigation carried out is highly defective and faulty.

7. Injuries sustained by the victim Kailash Singh are not under

challenge. The accused persons pleaded that Kailash Singh sustained

injuries due to fall as he was under the influence of liquor. There is no

substance in the appellants' plea in this regard as in the MLC (PW-1/A),

Kailash was not found to have consumed liquor. It was imperative for the

Investigating Officer to ascertain during investigation as to who was the

actual culprit / assailant who inflicted injuries to the victim / victims. The

prosecution has failed to establish the role played by each assailant to

ascertain his culpability. In the instant case, both the parties were closely

related to each other. Relations became strained due to missing of

complainant's son Hemraj and they suspected involvement of A-1's wife

Somwati in his disappearance. The complainant was not expected to let

the real culprit go scot free. However, from the deposition nothing could

be established as to who was the actual assailant who inflicted fatal blows

on the body of the deceased. The complainant Dropti in her statement

(Ex.PW-2/A) only implicated A-1 for inflicting a single danda blow on

head of her husband. However, in her deposition before the Court, she

named Bhola Shanker (A-1), Sher Singh (A-2), Seema, Pinki, Kamlesh,

Somwati, Gopal and Meena to have inflicted injuries to her husband. She

did not assign specific role to each of them. PW-3 (Ravi), her son,

contradicted her and accused A-1 to have inflict injuries with an iron rod

on his head. He pointed out towards A-2 to have inflicted a 'balli' blow on

the head of his father. PW-4 (Vikky) did not claim his presence at the spot

at the time of occurrence. It is difficult to ascertain the role played by each

of the assailants in the incident and the impact of the blow inflicted by any

of them on the deceased. The Investigating Officer did not find

involvement of Kamlesh, Seema, Pinki, Gopal and Meena. Somwati was

kept in column No.2 for which no cognizance was taken by the learned

Trial Court. In these circumstances, it is highly unsafe to convict the

appellants under Section 304 part-II IPC. They deserve benefit of doubt.

8. In the result, the appeal is allowed. Conviction and sentence

passed by learned Addl. Sessions Judge are set aside. The appellants be

set at liberty forthwith, if not required in any other case. Pending

application (if any) stands disposed of. Trial Court record be sent back

forthwith. A copy of the judgment be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE FEBRUARY 14, 2014/tr