Delhi High Court
Sita Ram & Anr. vs State Of Delhi on 5 July, 2018
$~R-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 82/2003
SITA RAM & ANR. ..... Appellants
Through: Mr. K. B. Andley, Sr. Advocate
with Mr. M. Shamikh and Mr. Anurag
Andley, Advocates.
versus
STATE OF DELHI ..... Respondent
Through: Mr. Hirein Sharma, APP for State.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
% 05.07.2018
Dr. S. Muralidhar, J.:
1. This is an appeal directed against the impugned judgment dated 17 th
January, 2003 passed by the learned Additional Sessions Judge, Delhi
in Sessions Case No.79/2001 arising out of FIR No.38/1983 registered
at Police Station („PS‟) Sultanpuri, Delhi, convicting the Appellants
herein for the offence punishable under Sections 302/34 and the order
on sentence dated 18th January, 2003 whereby for the offence under
Section 302/34 IPC both of them were sentenced to imprisonment for
life with a fine of Rs.5,000/-, and in default of payment of the fine to
undergo Rigorous Imprisonment („RI‟) for one year. The co accused
were convicted for the offence punishable under Section 307/34 IPC
to undergo RI for five years with a fine of Rs.1,000/- and in default of
payment of fine to undergo RI for six months.
2. At the outset, it may be noted that Appellant No.1 Sita Ram expired
during the pendency of the present appeal. This fact was noted by the
Court in its order dated 29th May, 2014. Accordingly, the appeal as far
as Appellant No.1 Shri Sita Ram is concerned stood abated by the said
order. The present appeal is by Attar Singh S/o late Shri Sita Ram,
who is Appellant No.2.
Charge
3. By the order dated 14th November, 1983 of the Trial Court,
common charge was framed against all the accused including the
present appellant Shri Attar Singh. The co-accused were his father late
Sita Ram (A-1), Fakira (A-2) (who died during the pendency of the
trial), Balbir (A-3) (also died during the pendency of the trial), the
present appellant - Attar Singh (A-4), Jogi Ram (A-5), Baljeet Singh
(A-6) and Pappi @ Brahm Dev (A-7) (who also died during the
pendency of the trial).
4. The common charges against all the accused was that first, on 6th
March, 1983 at about 9 pm at Qutab Garh, Delhi, they constituted an
unlawful assembly with the common object of murdering Prem Chand
(deceased), Vijay Kumar (PW-11), Mahender (PW-2), Daya Chand
(PW-5) and Suresh (PW-6) and hence committed the offence of
rioting punishable under Section 147 IPC; secondly, that pursuant to
the common object A-1 armed with a jelli, the present appellant, A-3
and A-7 (armed with lathis) committed rioting, the offence punishable
under Section 148 IPC; thirdly, that all of them pursuant to the afore-
mentioned common object murdered Prem Chand (deceased) thereby
committing the offence punishable under Section 302 read with
Section 149 IPC; fourthly, that they caused hurt to Suresh (PW-6)
thereby committing an offence punishable under Section 307 read
with Section 149 IPC; and lastly, that they caused hurt to Smt.
Chandro (PW-13) thereby committing the offence punishable under
Section 307 read with Section 149 IPC.
Version of PW-6
5. What transpired according to the prosecution at 9 pm on 6th March,
1983 was spoken of by some of the injured eye-witnesses, one of
whom was Suresh Kumar (PW-6). In his testimony, he stated that he
was sitting with six of his brothers in their house in the drawing room
when Balbir @ Tunda (A-3) came into the verandah adjoining the
drawing room and started hurling filthy abuses at them. Raj Singh
(PW-4) went to the verandah to appease A-3. However, A-3 gave a
slap to PW-4. Thereupon, PW-4 and A-3 started scuffling with each
other. PW-6 and his brothers came into the verandah and started
beating A-3.
6. It may be noticed at this stage that A-3 is supposed to have received
as many as 11 injuries as per the MLC (Ex.PW-17/D). According to
PW-6, thereafter they noticed six persons coming towards them from
the side of the main gate. Those six were the other co-accused of A-3
which included the present appellant Attar Singh (A-4). According to
PW-6, Sita Ram (A-1) was armed with a jelli and the other five,
including A-4, were armed with lathis. A-3 is supposed to have
exhorted the co-accused to kill all the members of the complainant
party and that none of them should escape. According to PW-6,
thereupon A-5 caught hold of PW-6 and A-6 gave him lathi blows on
his head.
7. According to PW-6, A-2 caught hold of Prem Chand (deceased) and
A-1 gave him a jelli blow on his chest. According to PW-6, A-7 and
the present Appellant i.e. A-4 gave lathi butt blows on the abdomen of
Smt. Chandro (PW-13) after she had fallen to the ground. Therefore,
the only role attributed by PW-6 to the present Appellant is that he
gave a lathi blow to PW-13 on her abdomen. Unfortunately for the
prosecution, PW-13 herself turned hostile and did not support the case
of the prosecution. In effect therefore neither PW-6 nor PW-13 were
useful for the prosecution to affix the guilt of the present Appellant.
Evidence of PW-4
8. The other witness who had spoken about the role of the Appellant
A-4 was Raj Singh (PW-4). According to PW-4, the present
Appellant, on the exhortation of A-3, gave lathi blows on the person
of deceased Prem Chand. However, the Court finds that in his cross-
examination, PW-4 made an admission that "when my statement was
recorded by the police although I knew that lathi blows were given to
Prem Chand I did not know how many injuries and at what parts had
been caused by lathies and by whom. I had not stated before the police
that Attar Singh had given a lathi blow on the waist of Prem Chand.
Confronted with portion mark B to B in Ex.PW-4/DB where it is so
recorded".
9. Apart from the above admission making PW-4 an unreliable
witness, the medical evidence also did not corroborate his testimony.
Dr. Bharat Singh (PW-1) who conducted the post-mortem of Prem
Chand noticed seven external injuries, two of which were punctured
wounds, one was a lacerated wound and the remaining were abrasions.
None of the external injuries therefore could be said to be related in
particular to the lathi blows said to have been given by A-4 on the
deceased.
10. The Court is of the considered view that it would be unsafe to affix
the culpability the Appellant for the killing of the deceased only on the
basis of the unreliable evidence of PW-4 which does not appear to be
corroborated by any other eye witness, much less by the medical
evidence on record.
11. With the prosecution evidence not conclusively proving the guilt
of the Appellant for the afore-mentioned offences, the Trial Court was
in error in convicting him for the said offences with the aid of Section
34 IPC. The Appellant is accordingly entitled to the benefit of doubt.
He is acquitted of the offence punishable under Section 302 read with
Section 34 IPC. The impugned judgment of the trial Court in so far as
it convicts the present Appellant for the afore-mentioned offence and
the consequent order on sentence of the trial Court qua the present
Appellant are accordingly hereby set aside. The appeal is allowed.
12. The bail bond and surety bond furnished by the Appellant stand
discharged. The Appellant will fulfil the requirements of Section 437-
A of the Code of Criminal Procedure, 1973 to the satisfaction of the
learned Trial Court at the earliest. The Trial Court Record be returned
together with a certified copy of this judgment.
S. MURALIDHAR, J.
VINOD GOEL, J.
JULY 05, 2018
dkb
