Delhi High Court
State Govt. Of Nct Of Delhi vs Ajay @ Pawwa & Anr. on 20 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 20.04.2015
CRL.L.P.290/2015
STATE GOVT. OF NCT OF DELHI ..... Petitioner
versus
AJAY @ PAWWA & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Neeraj Kumar Singh, APP with Inspector Rajeshwar Aggarwal, ATO,
PS Naraina
For the Respondents : None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J (ORAL)
1. The present is a petition under Section 378(3) of the Code of Criminal
Procedure, 1973 (Cr.P.C.) seeking leave to appeal against the judgment dated
24.12.2014, passed by the Additional Sessions Judge-04, District Courts,
Dwarka, New Delhi, whereby the respondents herein were acquitted of the
charges under Sections 304/394/411/34 IPC.
2. In a nutshell, the case of the prosecution is that on the intervening night
of 27/28.01.2011, the respondents along with Naseem (who has not been
arrested), committed culpable homicide not amounting to murder by causing
death of one Om Dutt and that they caused hurt to the latter while committing
robbery. The respondents herein were charged for the offences punishable
under Sections 304/34 IPC and 394/34 IPC with the respondent No.1 Ajay
being additionally charged for the offences punishable under Section 411 IPC.
The prosecution had examined 16 witnesses. The impugned order records that
the prosecution was required to prove the following circumstances against the
accused:-
"23. The case of the prosecution rest squarely on the
circumstantial evidence and the prosecution intends to
prove the following circumstances against the accused:
a) Homicidal death of Om Dutt
b) The accused persons were last seen at Naraina
Flyover in s scuffle.
c) Recovery of I Card of the deceased from the
accused Ajay Pawwa.
d) Recovery of a mobile from the accused Rakesh
in which the SIM card of the deceased used."
3. The impugned order then goes on to discuss the aforementioned
circumstances in the light of the evidence on record and the submissions made
by the respective parties. The said analysis is recorded in the impugned order as
follows:-
"25. Homicidal Death of the Om Dutt: In order to
prove the homicidal death of deceased Omdutt the
prosecution examined PW4 Dr. Raghvendra Baghla who
conducted post mortem and proved his report as Ex.
PW4/A. The witness testified that the death of deceased
was caused by hemorrhagic shock due to ante-mortem
injury to liver produced by blunt force impact. He also
proved his subsequent opinion vide Ex. PW4/B that the
injuries suffered by the deceased on the forehead were
insufficient to cause death in the ordinary course of
nature. His opinion Ex. PW4/B further mentions that the
injuries sustained by the deceased cannot be ruled out
due to accidental fall. In the light of the testimony of
PW4, it cannot be conclusively held that the death of
deceased Om Dutt was homicidal in nature. It is still a
possibility that the death could have occurred due to an
accidental fall. Therefore, the prosecution is unable to
establish that the death of Om Dutt was a homicidal
death.
26. The accused persons were last seen at Nariana
Flyover in a scuffle: The prosecution has relied upon the
testimony of PW5 Moolchand Mistry in order to
establish the presence of the accused persons at the place
of occurrence. PW5 deposed that he saw the accused
persons were grappling with two other persons at about
9/09:30 pm on 27.01.2011 and the said person to whom
the accused persons gave beatings fell down. However,
this witness does not testify to the effect that he saw the
person with whom the accused persons were grappling.
During the course of his cross examination, PW5
categorically deposed that he saw the faces of only the
accused persons and not of the other persons. After going
through the testimony of PW5, I do not find that the
presence of accused persons has been established with
the deceased as the PW5 admits that he did not see the
face of the persons with whom the accused were
grappling.
27. Recovery of I-Card of the deceased from the
accused Ajay Pawwa: The prosecution has alleged that
both the accused persons Ajay & Rakesh committed
robbery of the purse of deceased Om Dutt containing Rs.
10,500/- in cash, his election I-Card and a MTS Mobile.
28. PW12 Ct. Diwakar and PW14 IO Inspector Sunil
Kumar deposed that the accused Ajay led them to a
Jhuggi no. H-472 from where he got recovered the voter I
Card of the deceased which was seized by the IO vide
seizure memo Ex. PW1/D. PW1 Rajiv Kumar also
deposed to the effect that the election I-Card was
recovered from the jhuggi of accused Ajay, however,
except for the brother of deceased the IO did not join any
public person from the vicinity of the Jhuggi of the
accused despite the fact as per the deposition of PW1, a
young boy and a lady were present in the jhuggi of
accused.
29. The prosecution alleged that the accused persons
committed robbery of the purse of the deceased but it has
come in the deposition of PW1 that the Doctor concerned
who conducted the post mortem on his brother's dead
body found Rs. 30,500/- in the clothes of dead body. This
fact also finds support from the statement of PW9 Ct.
Naveen who testified that PW1 had told him that the
Doctor handed over a sum of Rs. 30,500/- in cash, Keys
and a handkerchief of deceased to him. Thus, the very
fact that the deceased was robbed becomes doubtful as
the huge amount of money was still with the deceased
when the post-mortem on his body was conducted. In
these facts, the recovery of the I-Card of the deceased
from the accused Ajay becomes inconsequential, more
so, when the recovery is effected in absence of any public
person despite availability.
30. Recovery of a mobile from the accused Rakesh
in which the SIM card of the deceased was used: It has
also come in the evidence of IO that the SIM of the
deceased which was used by the accused in his mobile
phone was not recovered nor the mobile phone of the
deceased was recovered, therefore, merely the recovery
of phone from the possession of accused Rakesh on
which the SIM card of the phone of the deceased was
used does not connect him with the crime specially when
it is not proved that on the date of the incident or even
after that the recovered mobile phone was in possession
of accused Rakesh. Nonetheless, the robbery stands not
proved in the present case."
4. From a bare reading of the above, it is observed that PW-4 Dr.
Raghvendra Baghla, who conducted the post-mortem of the deceased, had
deposed in his subsequent opinion being Ex.PW-4/B that the injuries suffered
by the deceased on the forehead were insufficient to cause death in the ordinary
course of nature.
5. Consequently, it was the opinion of the Trial Court that it could not be
conclusively held that the death of the deceased Om Dutt was homicidal in
nature. Furthermore, from a reading of the impugned order it is revealed that
the testimony of PW-5 Moolchand Mistry does not conclusively establish that
the accused was seen grappling with the deceased. It is also evident from the
impugned order that the deceased was not the victim of a robbery, inasmuch as,
`30,500/- were recovered from his clothes at the time of the post-mortem.
6. In view of the foregoing, I am in agreement with the finding arrived at by
the Trial Court. Consequently, the present is not a fit case for the grant of
special leave to the State to appeal against the impugned order.
7. The petition is accordingly dismissed and disposed of.
SIDDHARTH MRIDUL, J
APRIL 20, 2015
dn
