Delhi District Court
State vs . Jagdish & Others on 26 August, 2008
-:1:- Cr.A.No.22/07
State Vs. Jagdish & Others
IN THE COURT OF SH.ANOOP KUMAR MENDIRATTA :
ADDL.SESSIONS JUDGE : ROHINI : DELHI
Criminal Appeal No.22/07
State Vs. 1.Jagdish s/o Sh.Om Parkash
2.Sanjay son of Sh.Om Parkash
3.Sona Devi w/o Sh.Om Parkash
All residents of A-4/29, Veena Enclave
Nangloi, Delhi.
JUDGMENT
Present appeal against acquittal has been preferred by the prosecution/State against Judgment dated 15.09.07 passed by Ld. trial court whereby the accused have been acquitted of the offence U/s 452/323/324 r/w S-34 IPC.
In brief, facts necessary for disposal of appeal are recapitulated as under:-
On 29.12.98 about 5.30 p.m. Dilbagh Singh (PW.1) received information that his brother Dalbir Singh PW.2 was being assaulted at his shop. On reaching the shop he saw that his brother Dalbir was lying on the counter and was being assaulted by all the three accused/respondents. As he -:2:- Cr.A.No.22/07 State Vs. Jagdish & Others inquired as to what had happened, accused Jagdish kicked him and also inflicted a blow with an iron object on his face. Further accused Sanjay inflicted a blow with a brick and accused Sona Devi caused a teeth bite. He also alleged that accused Jagdish used to buy articles from the shop run by them but did not pay the amount for the same.
On receiving DD No.20A regarding quarrel SI Anil Kumar (PW.6) reached the spot along with constable Tara Chand (PW.3). Since the injured had already been taken by the PCR Van to DDU hospital, he reached at DDU hospital and obtained the MLC of the injured Dalbir Singh, Dilbagh Singh and accused Sona Devi. Statement of PW.1 Dilbagh Singh was recorded and rukka was forwarded through constable Tara Chand for registration of FIR. FIR Ex.PW.6/A was registered on the basis of same. Accused were arrested during course of investigation and charge sheet was filed after investigation.
2. Charge was framed by the Ld. trial court against the accused U/s 452/323/324 r/w section 34 IPC to which they pleaded not guilty and claimed trial.
3. In support of its case prosecution examined seven witnesses PW.1 Dilbagh Singh & PW.2 Dalbir Singh (injured) -:3:- Cr.A.No.22/07 State Vs. Jagdish & Others are the material witnesses to the incident. PW.3 constable Tara Chand & PW.6 ASI Anil (IO) deposed regarding the conduct of investigation. PW.4 ASI Bhagirath (Duty Officer) proved the copy of FIR as Ex.PW.4/A. PW.5 (constable Ishwar Singh), DD writer proved DD No.23-A as mark A. PW.7 (record clerk) DDU hospital proved the MLC.
4. In the statement U/s 313 Cr.PC accused denied the prosecution version. Accused further led evidence of two witnesses namely DW.1 Mehar Singh & DW.2 Tika Ram.
DW.1 Mehar Singh deposed that on the date of incident there had been an altercation as Dalbir objected to playing of 4/5 children at the spot and accused Sanjay was also present at the spot. On hearing the commotion the mother of Sanjay, namely accused Sona Devi, also reached the spot. Further Dalbir abused and assaulted accused Sona Devi. He also deposed that accused Jagdish was not present at the spot.
DW.2 Tika Ram also deposed on similar lines.
5. Ld. trial court acquitted the accused as the injuries on the person of Sona Devi could not be explained by the prosecution. The trial court further did not find the testimony -:4:- Cr.A.No.22/07 State Vs. Jagdish & Others of material witness PW.1 Dilbagh Singh & PW.2 Dilbir Singh as reliable and observed that testimonies were contradictory on material points.
6. Acquittal has been assailed by Ld.APP on various grounds. It is contended that there was no serious infirmity in testimony of PW.1 & 2 and their deposition cannot be disbelieved merely because they were related as real brothers. It is also submitted that benefit can not be given to the accused on account of lapses of investigating agency and merely because the injuries on person of accused Sona Devi could not be explained. Reference has been further made to 2003 Crl.LJ 1226.
7. I have heard Ld. APP for State, counsel for accused/respondents and perused the record carefully.
Before adverting to the merits of the appeal, I deem it necessary to refer to the principles necessary to be kept in consideration by the Appellate court while dealing with appeal against acquittal as laid down by Hon'ble Apex Court in 2008 AD SC 325. It is therein observed that presumption of innocence is further strengthened by the acquittal by the trial -:5:- Cr.A.No.22/07 State Vs. Jagdish & Others court and the appellate court should reverse an acquittal only when it has very substantial and compelling reasons. Referring to the Judgments starting from Sheo Swarup Vs. King Emperor AIR 1934 Privy Council 227 till Chandrappa & Others Vs. State of Karnataka (2007) 4 SCC 415 the Hon'ble Apex Court emphasised the need to consider the principles while dealing with appeals against acquittal.
Now coming to the merits of the case, at the outset it may be observed that both the material witnesses PW.1 & 2 are real brothers. Relationship itself is not a factum to affect creditability of witnesses but the court has to adopt careful approach and analyse the evidence to ensure that it is cogent and credible. The same requires a closer scrutiny in present case as a defence has been taken that the relations between the parties were uncordial due to some grudges.
Ld. trial court found material contradictions in the testimony of material witnesses PW.1 Dilbagh & PW.2 Dalbir Singh on the point of causing of injuries by the accused. It was observed by Ld. trial court that PW.1 deposed that when he reached at the spot accused were beating his brother but PW.2 Dalbir admitted in his cross examination that he received all the injuries before the arrival of his brother and the -:6:- Cr.A.No.22/07 State Vs. Jagdish & Others accused persons left him on the arrival of his brother. Ld. trial court also found testimony of the witnesses contrary on the point of object held by accused Jagdish. It was observed that PW.1 deposed that accused Jagdish was having one solid iron in his hand while PW.2 deposed that Narinder was having brick in his hand. Apart from above the trial court also observed that injuries on person of Sona Devi were not explained by the prosecution. The trial court was of the view that witnesses did not come out with truthful story. Besides above the trial court also observed that PWs failed to rationally explain as to how the FIR number came to be noted on site plan as the same was prepared prior to registration of FIR as per testimony of constable Tara Chand.
9. Perusal of testimonies of material witnesses on record i.e. PW.1 & 2 reveals that as per case of prosecution the incident occurred over the purchase of badminton rackets and breaking of the same by the accused. However, the same has been strongly disputed and it was suggested in cross examination and testimony of defence witnesses DW. 1 & 2 that the incident had taken place over the playing of children at the spot. In case the incident had taken place over the breaking of badminton racket the same should have been -:7:- Cr.A.No.22/07 State Vs. Jagdish & Others seized by the police and could have serve as corroboration to the incident as alleged by prosecution. It may also be noted that PW.2 Dilbir Singh failed to mention anything regarding the genesis of incident on purchase of badminton racket in statement U/s 161 Cr.PC and was duly confronted in his cross examination to this extent. In the light of testimony of DWs, the reason over the genesis of the incident has not been proved beyond reasonable doubt.
Next it may be observed that the incident had taken place at the shop wherein the persons from the vicinity would have definitely collected and witnessed the incident. But unfortunately no independent witness was joined by the investigating agency. PW.1 Dilbagh admitted in his chief that he had received the information regarding the quarrel from a boy namely Deepak but the said boy was even not made as a witness. It has been vehemently pointed out by counsel for accused/respondent that the accused and the complainant were residing in the same area and one of the accused happens to be a Govt. servant and have been implicated as the relations between parties were not cordial over some earlier incidents. In the aforesaid background the discrepancies in the testimony of the witnesses pointed out by Ld. trial court gain importance and due weight has to be given to them. The -:8:- Cr.A.No.22/07 State Vs. Jagdish & Others true reason as to the initiation of the incident also remains doubtful in the light of testimony of witnesses. The non explanation of the injuries on person of accused Sona Devi as observed by ld. trial court also throws doubt as to the genesis of the incident and the manner in which the incident may have taken place.
For the foregoing reasons I am of the considered view that the conclusions reached by the Ld. trial court cannot be said to be ill founded, erroneous or unsustainable or perverse. It is settled that the appellate court should take a different view of the evidence only for substantial and compelling reasons to come to an conclusion different from that of the trial judge. On the facts and circumstances I am of the view that the Ld. trial court had rightly entertained a reasonable doubt as to the credibility of the prosecution version and had rightly extended the benefit of doubt.
For the foregoing reasons I do not find any infirmity in the findings arrived at by the Ld. trial court. The appeal is accordingly dismissed. Trial court record be sent back along with copy of the Judgment. File be consigned to Record Room.
ANNOUNCED IN THE OPEN ( A.K.MENDIRATTA )
COURT ON 26.08.08 ADDL.SESSIONS JUDGE
ROHINI : DELHI
-:9:- Cr.A.No.22/07
State Vs. Jagdish & Others
-:10:- Cr.A.No.22/07
State Vs. Jagdish & Others
26.08.08
Present- Sh.Vishnu Saran, Addl.PP for State.
(Regular APP is on leave today) Respondents in person.
Vide separate Judgment appeal is dismissed. Trial court record be sent back along with copy of Judgment. Appeal file be consigned to Record Room.
( A.K.MENDIRATTA ) ADDL.SESSIONS JUDGE ROHINI : DELHI