Delhi High Court

Rajinder Prasad & Anr. vs State on 19 May, 2014

Author: Sunita Gupta

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 19th May, 2014

     +CRL.A.8/2000

     RAJINDER PRASAD & ANR.                   ..... Appellants
                  Through: Mr. K.B. Andley, Sr. Advocate
                            with Mr. M.L. Yadav and Mr.
                            Hansraj, Advocates
                  versus

     STATE                                             ..... Respondent
                          Through:    Ms. Richa Kapoor, Additional
                                      Public Prosecutor for State with
                                      Inspector Daya Sagar, PS Karol
                                      Bagh.
     %
     CORAM:
     HON'BLE MR. JUSTICE KAILASH GAMBHIR
     HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: SUNITA GUPTA, J. (Oral)

1. Appellants Rajinder Prasad and Tulsi Prasad have filed this

appeal bearing Crl.A.No.8/2000 challenging the judgment and

order on sentence dated 30th November, 1999 passed by the learned

Additional District and Sessions Judge, Delhi in Sessions Case

No.81/97 arising out of FIR No.436/97 u/s 302/34 IPC, PS Karol

Bagh, whereby the appellants were convicted u/s 302 IPC and were

sentenced to undergo life imprisonment. They were given benefit

of Section 428 Cr.P.C.

2. Prosecution case, succinctly stated, is as follows:

3. On 15th July, 1997, on receipt of DD No. 5A at about 2:10

AM, SI Harish Chander Gautam along with Constable Rohtash

went to house No. 4925/40, Reghar Pura, Karol Bagh and came to

know that the injured had been removed to JPN Hospital. After

leaving Constable Rohtash at the spot to preserve the scene of

crime, SI Harish Chander went to JPN hospital, where he collected

MLC of an unknown injured who was declared „brought dead‟.

Post mortem on the dead body was got conducted and the dead

body was handed over to the legal heirs of the deceased.

Thereafter, SI Harish Chander came to the spot where Yashoda,

wife of the deceased Rajender, gave her statement on which

endorsement was made vide Ex.PW 5/A and FIR under Section

302/34 IPC got registered. Investigation was handed over to

Inspector B.S. Rana, who carried out further investigation in the

matter, arrested the accused persons and after completing

investigation, submitted the charge sheet.

4. In order to substantiate the charge framed under Section

302/34 IPC against the accused persons, prosecution in all

examined 20 witnesses. All the incriminating evidence was put to

the accused persons while recording their statements under Section

313 Cr.P.C., wherein they alleged that complainant Yashoda

initially made the correct statement to the police. However,

subsequently on the instigation of her relatives, she made

supplementary statement. They pleaded their innocence and

alleged false implication in this case. They did not prefer to lead

any defence evidence.

5. Vide impugned judgment dated 30th November, 1999 and

order on sentence of the same date, both the accused were

convicted under Section 302/34 IPC and sentenced as mentioned

above. Challenging the findings of the learned Trial Court, the

present appeal has been preferred by the appellants.

6. During the pendency of the appeal, appellant No. 1 had

expired on 31st December, 2005. Therefore, vide order dated 25th

April, 2014, the appeal qua appellant No.1 stood abated.

7. We have heard Sh. K.B. Andley, learned Senior Counsel for

the appellant duly assisted by Sh.M.L. Yadav, Advocate and Ms.

Richa Kapoor, Additional Public Prosecutor for the State and have

perused the record.

8. It was submitted by learned counsel for the appellant that

there is an inordinate delay in lodging the FIR which, in fact, is the

result of deliberation and manipulation, inasmuch as, initially the

complainant made a statement before the Police that her husband

had fallen from the roof. Besides her, statement of various other

persons were recorded, all of whom stated the same facts and did

not implicate the accused persons. Subsequently, the complainant

had falsely implicated the accused persons. Under the

circumstances, it was submitted that the findings of the learned

Trial Court are based on conjectures and surmises, which deserve

to be set aside.

9. The submissions made by learned Senior Counsel for the

appellant has substantial force in view of the voluminous evidence

coming on record.

10. Police machinery, in the instant case, swung into action on

receipt of DD No.5A Ex.PW16/A recorded at 2:10 AM to the

effect that lady constable Sunita from PCR had given information

that a person had fallen from the roof of house No. 4925, Gali

No.40, Regar Pura, Karol Bagh and police be sent. This DD was

entrusted to SI Harish Chander, who along with Constable

Rohtash, went to the spot where they came to know that injured

had already been removed to hospital. On reaching the hospital, SI

Harish Chand collected the MLC of an unknown person, who was

declared "brought dead" in the hospital. Dead body and MLC of

Rajinder was sent to mortuary. Thereafter, he came to the spot and

recorded the statement of Yashoda Ex.PW5/DA wherein she

disclosed that she along with her husband Rajender @ Raju were

residing as tenants @ Rs.500/- per month in the house of Tulsi for

the last about 1½ years. Tulsi used to indulge in obscene activities

with her husband. Both Tulsi and her husband used to consume

alcohol. On that day, her husband had consumed alcohol. At

about 12:00 AM when she was washing utensils, Raju had come

downstairs. At about 1:00 AM when she was sleeping, Lalita,

daughter of Padam Chand, came and informed her that Raju had

fallen from the roof. She had not heard any noise of quarrel that

night. She came downstairs with Lalita and found Raju lying in the

street. She asked Rajender to remove Raju to hospital on which

Rajender told her that he will be taken to hospital shortly. In the

meantime, many persons collected there and somebody informed

the police. PCR Van came and removed Raju to hospital. In her

presence, no quarrel had taken place with her husband. This

statement was attested by SI Harish Chander.

11. SI Harish Chander, thereafter took wife of the deceased and

some of his relatives to the mortuary where they identified the dead

body of the deceased. SI Harish Chander conducted inquest

proceedings. Form No.25.35(1)(B) Ex. PW16/D was filled up

where in column no. 20, the apparent cause of death was

mentioned as "fall from terrace of third floor under influence of

liquor". An application Ex. PW16/F was moved by SI Harish

Chander to doctor for conducting post mortem examination

wherein also it is recorded that Raju @ Rajender was sleeping on

the terrace of 3rd floor of the house after consuming liquor. At

about 1:00/1:30 AM, he had fallen from the roof, as a result of

which, he sustained injuries and he was removed by PCR Van to

JPN Hospital. The brief history Ex.PW16/G is also to the same

effect. When the injured was brought to the hospital and his MLC

Ex. PW6/A was prepared, even at that time, the alleged history of

falling down from 3rd floor was given.

12. Besides recording statement of Yashoda, wife of deceased,

SI Harish Chander recorded statements of various other persons.

Ex.PW7/A is the statement of Kari, s/o Sh. Hansibul, resident of

4925/40, Regharpura, Karol Bagh, Delhi and stated that on the

night of 14th July, 1997, after taking dinner, he had gone to sleep

on the 3rd floor of his house at about 12:30 AM. At that time, Raju

was also sleeping on the terrace. Raju had consumed liquor in his

presence. He neither noticed any quarrel between Raju and

anybody else nor heard any noise. When Lalita raised hue and cry

that Raju had fallen from the roof, then he along with Lalita and

Yashoda came down and found Raju lying on the road.

13. PW8 Smt. Sohan Devi is the mother of the deceased. Her

statement Ex.PW8/A was recorded. She also stated that she was

sleeping on the second floor of her house. At about 1:00 AM, her

daughter Lalita came and woke her up by stating that she had heard

some noise and when she peeped from the window, she saw Raju

lying on the ground. Lalita went to inform Yashoda, wife of Raju.

She came downstairs. Lalita and Yashoda followed her. At that

time, Rajinder was sleeping on the road while Tulsi was sleeping in

his room. Both of them came and Rajinder wanted to remove Raju

to hospital, however, somebody informed the police. The police

came and removed Raju to the hospital. On that night, there was

no quarrel nor did she hear any noise on that day. Raju used to

consume alcohol. She did not notice anybody beating Raju on that

night.

14. Mukesh is the brother of the deceased whose statement

Ex.PW4/A was also recorded by SI Harish Chand and he revealed

that a quarrel had taken place between his brother Raju with Tulsi

and Rajender on 13th July, 1997 at about 9:00 PM. On that day,

Raju had sustained some minor injuries also but no report was

lodged to the police nor was he medically examined. Raju,

Rajinder and Tulsi used to consume liquor daily. On the fateful

night of 14th July, 1997, at about 1:00/1:30 AM, Yashoda, wife of

Raju came and informed that Raju had fallen from the roof.

Rajinder and Tulsi were also present who wanted to move Raju to

hospital but he told them to wait for the police. Police was

informed. PCR Van came and removed Raju to hospital.

15. PW2 Lalita, was also examined by SI Harish Chand and her

statement Ex.PW16/J was recorded wherein she stated that on the

night of 14th July, 1997 she was sleeping at the second floor of her

house. At about 1:00/1:30 AM, she heard some noise. When she

peeped from the window, she found Raju lying in the street after

having fallen from the terrace of 3rd floor. She did not hear any

quarrel or noise on that night. She informed her mother Sohan Devi

and thereafter, informed her sister-in-law Yashoda, wife of Raju.

Yashoda was also sleeping at that time. She woke her up and

informed about Raju lying in the street. Many persons collected

there. Somebody informed the police. PCR Van came and

removed Raju to hospital. She also stated about the incident of 13 th

July, 1997, when Raju was abused by Tulsi and was beaten by him,

however, Raju was rescued by her and Nirmala, wife of Tulsi.

Both Raju and Tulsi were under the influence of alcohol.

Thereafter, both went to their respective rooms. On the night of

14th July, 1997 also, Raju had consumed liquor and was sleeping

on the terrace of his house. She also did not hear any noise of

quarrel on that day.

16. PW16 SI Harish Chander seized blood, earth control and

chappals of the deceased from the spot. According to him, wife of

the deceased returned back from the mortuary and then she made a

statement again which is Ex.PW5/A, on which he made his

endorsement Ex.PW16/C and got the case registered. In this

statement Ex PW5/A, which culminated in registration of FIR, for

the first time, she alleged that on the night of 14 th July, 1997, at

about 12:00 AM, she as well as her husband Raju were sleeping.

Tulsi and Rajinder came and strangulated her husband. When her

husband raised alarm, she rushed to rescue him, however, she was

pushed by Rajinder and Tulsi and they threw Raju from the 3rd

floor of the house as a result of which, Rajinder died. Even prior

thereto, many a times, they used to quarrel with her husband and

they even tried to molest her.

17. When she appeared in the witness box, she deposed to the

same effect. As regards her earlier statement, she tried to give an

explanation that at the time of recording her statement Ex.PW5/DA

by the police, her mental condition was disturbed seeing the

condition of her husband. According to her, her statement

Ex.PW5/DA was recorded by the police at about 4:20 AM on 15 th

July, 1997 while statement Ex.PW5/A was recorded much later, at

about 2:00 PM on 15th July, 1997.

18. In criminal trial, one of the cardinal principles is registration

of earliest information as FIR. As observed by Hon‟ble Supreme

Court in Lalita Kumari vs. Govt. Of Uttar Pradesh and Ors., (2014)

2 SCC 1, the object sought to be achieved by registering the earliest

information as FIR is inter alia twofold:- One, that the criminal

process is set into motion and is well documented from the very

start; and second, that the earliest information received in relation to

the commission of a cognizable offence is recorded so that there

cannot be any embellishment, etc., later. In case there is delay in

lodging the FIR, the Court looks for plausible explanation for the

delay in lodging the report. The reason is obvious. Delay

sometimes affords opportunity to the complainant to make

deliberation upon the complaint and to make embellishment or even

make fabrications. Delay defeats the chance of the unsoiled and

untarnished version of the case to be presented before the Court at

the earliest instance. That is why if there is delay in either coming to

the police or before the Court, the Court always views the

allegations with suspicion and looks for satisfactory explanation. If

no such explanation is found, the delay is treated as fatal to the

prosecution case.

19. In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC

393, it was held that the delay in lodging the first information report

quite often results in embellishment as a result of afterthought. On

account of delay, the report not only gets bereft of the advantage of

spontaneity, but also danger creeps in of the introduction of coloured

version, exaggerated account or concocted story as a result of

deliberation and consultation.

20. In Ram Jag and Ors. v. The State of UP, (1974) 4 SCC 201,

the position was explained that whether the delay is so long as to

throw a cloud of suspicion on the seeds of the prosecution case must

depend upon a variety of factors which would vary from case to

case. Even a long delay can be condoned if the witnesses have no

motive for implicating the accused and/or when plausible

explanation is offered for the same. On the other hand, prompt filing

of the report is not an unmistakable guarantee of the truthfulness or

authenticity of the version of the prosecution.

21. In the case of Jai Prakash Singh v. State of Bihar & Anr.,

(2012) 4 SCC 379, the Supreme Court held:

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

22. Adverting to the case in hand, there is inordinate delay in

lodging the FIR inasmuch as, as per the rukka, the incident had

taken place on 15.07.1997 at 02.10 AM but FIR was registered

only after 2 PM i.e after about 12 hours of incident. This delay

assumes significance because after the incident, when police

arrived at the spot, complainant made a statement Ex.PW 5/DA

wherein she did not raise her suspicion on anybody and according

to her, it was an accidental death as her husband had fallen from

the terrace of the third floor of house while he was sleeping. The

explanation furnished by the complainant that she was mentally

disturbed and was not in fully conscious state of mind, does not

appear to be convincing in view of the fact that no such explanation

was given by her when she made statement Ex.PW5/A to the

police. Such explanation is forthcoming for the first time in her

deposition in the Court which seems to be an after-thought.

Moreover, under the circumstances, there is delay in lodging the

FIR which has not been satisfactorily explained. Besides her,

statements of several other persons were recorded, all of whom had

stated that the deceased was under influence of liquor and had

fallen from 3rd floor terrace of the house. Moreover, complainant

Yasoda is closely related to deceased, being his wife. Although,

there is no rule of law that conviction cannot be based on the

testimony of close relative of deceased provided it is cogent,

credible, reliable, trustworthy and inspires confidence. Keeping in

view the fact that in her initial statement, Ex.PW 5/DA she did not

level any allegation against anybody including accused persons

but in her subsequent statement Ex.PW 5/A, she implicated both

the accused, her testimony requires corroboration.

23. As seen above, statement of Lalita Ex. PW 16/J was

recorded before registration of FIR wherein she did not level any

allegation against any of the accused. Even during the trial of the

case, she had maintained the same stand which was taken by her

when her statement was recorded by the police and deposed that on

14th July, 1997 at about 12:00 PM, she was sleeping in her room on

the second floor. At about 1:00/1:30 AM, she heard the voice

(dham). She woke up and saw from the window that Raju @

Rajender who used to sleep on the terrace of the 3 rd floor had fallen

down in the gali from 3rd floor. She woke up her mother Sohna

Devi and went upstairs to wake up her sister-in-law Yashoda and

told her that Raju had fallen down. They came down the street.

Somebody informed the police and the police came and removed

Raju to hospital. She went a step further by deposing that she did

not notice any quarrel of deceased with anyone even on 13th July,

1997. Accused Tulsi was landlord of the deceased but no

altercation has taken place between Tulsi and deceased in her

presence on 13th July, 1997 at about 9:00/10:00 PM. Both the

accused Tulsi and deceased Raju used to consume liquor. Since

the witness did not support the case of prosecution, as such, she

was cross-examined by learned Public Prosecutor for the State and

in cross-examination, she has denied having stated to the police

that on 13th July, 1997 at about 9:00/10:00 PM, accused Tulsi had

come to her room and when deceased Raju was going upstairs

accused Tulsi started abusing him and when Raju asked him not to

abuse him, accused Tulsi put him down on the bed in her room or

that in the meantime, wife of Tulsi, namely, Nirmala came there

and they separated them.

24. PW4 Mukesh is the brother of deceased. According to him

on 13th July, 1997, there was a quarrel between Raju and Tulsi at

about 9:00 PM in the gali. Tulsi had given beatings to Raju, due to

which he sustained injuries on his face. However, matter was not

reported to the police. On 14th July, 1997, he was informed by his

sister-in-law Yashoda that accused Tulsi and Rajender had pushed

Raju from the roof. When he went to the spot, he saw his brother

lying in the gali. He called the police who removed his brother to

hospital. He went on stating that accused persons had thrown his

brother from the roof on account of quarrel between his brother and

Tulsi on 13th July, 1997. In cross-examination, he admitted that on

the intervening night of 14-15th July, 1997 his Bhabhi Yashoda

came to him and informed that accused persons have thrown

deceased Raju from the roof. However, he admitted that this fact

was not stated by him to the police. As such, it is a material

improvement in his statement.

25. PW7 Kari and PW8 Smt. Sohan Devi have reiterated the

statements Ex.PW7/A and PW8/A made by them before the police.

26. The cumulative effect of the aforesaid evidence led by the

prosecution reveals that prior to registration of FIR, it was the case

of prosecution, as revealed from the statement of various persons

recorded at the spot including the complainant, that the deceased

consumed liquor and had fallen from the terrace of 3 rd floor of his

house, as a result of which he sustained injuries which proved fatal.

It was only later on, that after delay of about 12 hours, the wife of

the deceased changed her stand and made a statement implicating

both the accused persons who were then arrested. In fact, her

testimony that on hearing alarm of her husband she went to the

terrace and saw both the accused quarrelling with her husband and

when she tried to rescue him, she was pushed by the accused

persons and they lifted her husband and threw him in the gali, does

not find support from the remaining witnesses, inasmuch as,

according to PW2 Lalita, on hearing the voice of „dham', she woke

up and peeped from the window and saw from the window that

Raju @ Rajender had fallen down in the gali from 3rd floor terrace.

Thereafter, she woke up her mother and sister-in-law Yashoda and

informed them that Raju had fallen down from the roof. It is only

after the information was given by Lalita that Sohan Devi and

Yashoda went downstairs and found Raju lying in the gali. To the

same effect is the testimony of PW8 Sohan Devi. In fact, she went

a step further by deposing that at that time accused Rajinder was

sleeping in the gali while Tulsi was sleeping inside the house.

None of the witnesses heard any quarrel between the deceased or

accused persons. The conduct of the accused is also worth noting,

inasmuch as, it has come on record that when the deceased was

found lying in the gali, the accused persons offered to take Raju to

hospital, however, brother of the deceased Mukesh informed the

police and thereafter PCR van came and removed him to hospital.

If the accused persons had committed the crime, they would not

have been found present at the spot. Throughout the police

proceedings, they were available at the spot and when Yashoda

subsequently made the incriminating statement against the accused

persons, they were immediately arrested.

27. The result of the aforesaid discussion is that testimony of

Yashoda alone was not sufficient to convict the accused persons.

Same does not find corroboration from other material on record.

As such, prosecution cannot be said to have established its case

beyond reasonable doubt.

28. Moreover, evidence available on record reflects that two set

of evidence are forthcoming. It is the golden rule of criminal

jurisprudence that if two views are possible on the same set of

evidence, the view favourable to the accused has to be preferred.

29. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC

2773, Hon‟ble Supreme Court observed as under:

"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."

30. Similarly, in Sharad Birdhichand Sarda vs. State of

Maharashtra, (1984) 4 SCC 116, it was held as under:

"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

31. Similar view was laid down in Sujit Biswas v. State of

Assam (2013) 12 SCC 406; State of U.P v. Awdhesh, (2008) 16

SCC 238; Ranjitham v. Basavaraj, (2012) 1 SCC 414 and

Rajkumar Singh v. State of Rajasthan, (2013) 5 SCC 772.

32. In view of this legal position, since two sets of evidence are

available, one pointing to the guilt of accused and the other to their

innocence, the accused are entitled to benefit of doubt. That being

so, the findings of the learned Trial Court cannot be sustained. In

fact, the material evidence coming on record has not been

appreciated by the learned Trial Court in correct perspective.

33. Under the circumstances, the appeal is allowed. The

judgment and order of sentence dated 30.11.1999 are set aside.