Delhi High Court
Chunni Lal @ Pappu vs The State (Delhi Administration) on 12 May, 2006
Equivalent citations: 2006CRILJ3055, 130(2006)DLT735
Author: Manmohan Sarin
Bench: Manmohan Sarin, J.M. Malik
JUDGMENT
Manmohan Sarin, J
1. Appellant Chunni Lal @ Pappu in this appeal assails the judgment and order of sentence dated 28.10.1992, by the learned Additional Sessions Judge, convicting and sentencing him under Section 302 IPC to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default, to undergo further imprisonment for one year.
2. There was some delay in filing of the appeal, which was condoned. The appeal was admitted to hearing vide orders dated 19.8.1993. Appellant prayed for suspension of sentence on account of his disturbed mental state for which, he was being treated. The Court after considering the report from the Senior Resident, Psychiatry Department of G.B. Pant Hospital, suspended the sentence of the appellant on furnishing a personal bond in the sum of Rs. 5,000/- with one surety of the like amount. Appellant was directed to be released in the custody of his mother.
3. Notices were issued to the appellant and to his counsel for listing the appeal for hearing. Counsel for the appellant did not appear despite service. Appellant could not be served. Bailable warrants against the appellant were issued, which were also returned unexecuted with comments "having left the address". Notices were directed to be issued to the sureties. The Trial Court reported that neither appellant nor the sureties were available at the address. Following the decision of the Division Bench in Mohd. Tahir @ Khuddar v. State Crl. A. No. 452/1997, we proceeded to appoint an amices Curiae to hear the appeal since it had not been possible to secure the presence of the appellant. Accordingly, Ms. Ritu Gauba, Advocate, was appointed an amices Curiae, for conduct of the appeal on behalf of the appellant. The amices Curiae and the counsel for the State were heard on 5th May, 2006 and judgment reserved.
4. Appellant Chunni Lal @ Pappu has been convicted for the offence under Section 302, i.e., murder of deceased Ram Babu on the testimony of PW-1 Yashoda, a washerwoman, aged about 30 years. Yashoda deposed that on 26.8.1988 at about 9.45 p.m., she was going to Seelampur Market to purchase bangles for herself on the eve of Raksha Bandhan. Upon reaching near the public latrine of K-Block, she saw three boys grappling with each other. The appellant Chunni Lal @ Pappu, S/o Sukhi Ram, a chholey wala, attacked Ram Babu with a knife. Ram Babu held his abdomen and fell down.
5. The detailed version as it emerges from the examination-in-chief and cross-examination of Yashoda, may be noted. She saw the incident from a distance of 10 feet and the three boys were grappling for five minutes. The deceased had felt giddiness and fell down. She kept quiet and did not intervene or raise any alarm. Someone in the public raised an alarm and said that parents of the deceased should be informed. On hearing this, she went to the house of Deep Chand and his wife Imarti Devi and informed them. Thereafter, she left for getting her bangles and did not return to the spot. According to her, there were many persons present at the time of quarrel but were asleep on cots. She returned to her house after one hour. She was awakened and taken to the Police Station, where her statement was recorded. She was not called to the place of occurrence. Her statement was recorded once on the night of occurrence and the second time, 2 to 3 days later. In her statement, she admitted that she knew almost everyone in the locality. She denied that she was doing work of ironing of clothes. She denied that saree of Devki, sister of the accused had been burnt or that she was forced to pay Rs. 50/- as compensation and on this account, she was inimical to the accused and was deposing falsely.
6. We may also notice that prosecution in support of its case, have produced PW-5 Shri Badri Prasad and PW-6 Shri Khem Singh as eye witnesses. PW-5 Badri Prasad was declared hostile by the State as he did not support the prosecution case. In his cross-examination, he denied having seen the injured/deceased Ram Babu or the accused Chunni Lal running from the spot where the injured was lying. He denied having made statement to that effect to the Police. PW-6 Khem Chand deposed to the extent that he was present where he saw Ram Babu lying injured, who was later removed to the Hospital and the Police having lifted blood samples from the ground. In another words, he did not claim to have witnessed the incident.
7. We may also notice that the learned Trial Judge did not believe the alleged oral dying declaration claimed to have been made by the deceased to his father Deep Chand, who along with his wife, had rushed to the spot after learning from PW-1 that their son Ram Babu had been stabbed. In our view, the learned Judge rightly disbelieved the alleged oral declaration. The statement of PW-2 Deep Chand suffers from several contradictions. At the beginning of his testimony, he had stated that when he and his wife reached the spot, they found their son unconscious. There is nothing to show that the deceased had regained consciousness. Deep Chand claimed that his son did not answer first but when he repeatedly asked him and put his ear to his son's mouth, he responded in low tone that he had been stabbed by the appellant-accused. We need not dwell further on this aspect as in our view, the learned Additional Sessions Judge has rightly not placed reliance on the aforesaid oral declaration.
8. Apart from the testimony of PW-1, learned Additional Sessions Judge has relied on the injuries suffered by the appellant on the right index finger as confirmed by his medical examination Exhibit PW-14/A. The learned Additional Sessions Judge found that the duration of the injuries being 24 hours old, it was in consonance with the prosecution version that appellant sustained the injuries from the knife, while attacking deceased Ram Babu on the night of 26th August, 1988. The MLC recorded the cause of the injury as given by the patient of having been beaten by someone. This was found to be at variance with the stand of the appellant set up in defense that he had sustained the injury from kitchen knife while making fruit chaat at the residence of his sister where he had gone on the eve of Raksha Bandhan. The learned Additional Sessions Judge disbelieved the defense set up by the appellant that he was not present at the scene and had stayed at his sister Raj Bala's house on the eve of Raksha Bandhan. He did not believe that the injuries sustained by the appellant was while making fruit chaat.
9. The learned Additional Sessions Judge held that PW-1 Yashoda had withstood the cross-examination and remained steadfast in her testimony. She had no enmity or reasons to depose against the appellant. He further disbelieved the defense version that Yashoda had enmity on account of the alleged burning of a saree of appellant's sister Devki and the recovery of Rs. 50/- as compensation from her.
10. It is in the light of aforesaid background of facts and contentions as raised, that the appeal has to be decided. Learned amices Curiae firstly submitted that it would not be safe to convict the appellant on the sole uncorroborated testimony of PW-1 Yashoda, which was riddled with several contradictions and inherent improbabilities. Learned amices Curiae further submitted that the Additional Sessions Judge had wrongly disbelieved the defense version. The appellant, his sister and father had all categorically stated that the appellant had gone to his sister on the eve of Raksha Bandhan. The learned ASJ should have not disregarded this plausible version of the defense that the injury on the finger was sustained while making fruit chaat at his sister's house. The injury sustained was on the index finger and on the palm side and it was not unusual to suffer such an injury while cutting fruits or vegetables. Ms. Ritu Gauba urged that the over all facts and circumstances are such that in any case, the appellant was entitled to be given benefit of doubt in accordance with well settled judicial principles.
11. Let us notice at this stage, the principles regarding the grant of benefit of doubt and appreciation of evidence as they emerge from judicial pronouncements.
Supreme Court in Aher Raja Khima v. State of Saurashtra reported at while deciding an appeal where the accused claimed that the confession was not voluntary and had been extracted under threat had occasion to observe:
Now it may be possible to take two views of this statement but there are two important factors in every criminal trial that weigh heavily in favor of an accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. What the appellant said in this case is not impossible; such things do happen and it is understandable that the police, frustrated in their endeavor to find the culprit among three other persons, should make an all out endeavor to make sure of the fourth. We do not say that that happened here. But that it might have happened is obvious, and when the police absent themselves from the witness box and forestall attempts at cross-examination, we find it impossible to hold that a Judge acting judicially, and bearing in mind the important principles that we have outlined above, can be said to have reached an unreasonable or an unfair conclusion when he deduces from these circumstances that there is a reasonable probability that the appellant's story is true and that therefore the confession was not voluntary.
The prosecution is required to prove the guilt of the accused beyond reasonable doubt. Supreme Court in Rang Bahadur Singh v. State of U.P. Reported at noted:
The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.
Regarding the approach to be adopted in criminal trials, Supreme Court in H.P. Admn. v. Om Prakash, reported at held :
the maxim that the accused should be given the benefit of doubt become pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt - the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy though unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is 'not the doubt of a vacillating mind that has no moral courage to decide but shelters itself in a vain and idle scepticism'. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticised. Lord Goddard, C.J., in Rox v. Kritz, said that when in explaining to the juries what the prosecution has to establish a Judge begins to use the words 'reasonable doubt' and try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language 'It is the duty of the prosecution to satisfy you of the prisoner's guilt'. What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favor of the accused is itself sufficient to establish the case beyond reasonable doubt. This then is the approach.
Reference may also be made to Shankar Lal v. State of Rajasthan reported at where the Court held the evidence of the solitary witness, who was a chance witness, being unreliable and found the conduct post incident unnatural. The Court extended benefit of doubt to the accused. The Supreme Court observed :
In this background if we appreciate the evidence of PW-6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5-4-1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for traveling to the police station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW 6 then there is no other material to base a conviction on the appellant, hence we are of the opinion that the appellant is entitled to the benefit of doubt, therefore, this appeal succeeds and is allowed.
As regards the meaning of 'reasonable doubt', the Court observed in CCE v. V.P. Sayed Mohd. reported at :
It is true that the onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused. An accused cannot be convicted of an offence on the basis of conjectures or suspicions. If a reasonable doubt arises in the mind of the court after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should be given to the accused but the reasonable doubt should be a real and substantial one and a 'well founded actual doubt arising out of the evidence existing after consideration of all the evidence'. Hence a mere whim or a surmise or suspicion furnishes an insufficient foundation upon which to raise a reasonable doubt, and so a vague conjecture, whimsical or vague doubt, a capricious and speculative doubt, an arbitrary, imaginary, fanciful, uncertain chimerical, trivial, indefinite or a mere possible doubt is not a reasonable doubt. Neither is a desire for more evidence of guilt, a capricious doubt or misgiving suggested by an ingenious counsel or arising from a merciful disposition or kindly feeling towards a prisoner, or from sympathy for him or his family.
Reference is also invited to Kali Ram v. State of H.P. Reported at wherein it was held:
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 favorable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. There has to be clear evidence of the guilt of the accused and in the absence of that it is not possible to record a finding of his guilt.
In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick or probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
12. Let us consider the evidence in the present case in the light of principles enumerated and approach to be adopted as per the foregoing judicial pronouncements. On perusal of the record including depositions, we find that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. The conviction is based on the sole testimony of PW-1. While it is correct that conviction can be based on the sole testimony of an eye witness. In the instant case, we find that there are several loose ends and missing links in the chain of facts, which have remained broken and unexplained. PW-1 claims that she saw three boys grappling for 4-5 minutes. While she says that the appellant stabbed the deceased, she is conspicuously silent with regard to the role of the third person. The prosecution has failed to bring to book or apprehend the third person. The prosecution case has proceeded as if the appellant was the only person involved. Secondly, PW-1 Yashoda, while she claims to be 10 feet away from the place of occurrence, neither intervened nor raised any alarm. Rather, she says that someone else raised an alarm said that deceased Ram Babu's parents should be informed. On hearing this, she went to the house of Deep Chand and Imarti Devi to inform them. The behavior and action of PW-1 following this is also rather queer. Having informed the parents, she states that she proceeded ahead to the market to buy the bangles and did not return to the spot and went back to her house. Normally, considering that she was known to all the persons in the locality, she would have come back with the parents of the deceased to the spot. She rather merrily proceeded to the market and then returned to her house after an hour or so, without any compunction or feelings for the deceased. She does not disclose the name of the person, who raised an alarm and at whose instance she chose to go and inform Deep Chand. All these factors raise a doubt as to her presence and having witnessed the incident.
13. The State also has not been able to unravel or show any alleged motive, or animosity on the part of the appellant with the deceased as motive for the crime. There is not a whisper of any past quarrel or animosity between the appellant and the deceased. In fact, there is no mention of even an association or friendship between the deceased and the appellant.
14.As per the Investigating Officer PW-16, on receiving the DD entry, he had visited to the spot and recorded the statement of PW-1 and PW-4 there. While Yashoda states that she had gone to her house when she was awakened and taken to the Police Station where her statement was recorded. On the question of arrest of the appellant, the Investigating Officer deposed that he had been arrested at 5.30 p.m. from Shastri Park on 27th August, 1988. The Investigating Officer further admits that he went to the house of the appellant on the night of the incident itself, i.e. 26th August, 1988. He, however, does not remember whether he took the appellant's father Sukh Ram, DW-2 and his second son to Raj Bala's house or that he searched the house of the appellant and found nothing. DW-2 had clearly deposed that after searching the house, he and his another son were taken to the residence of his daughter Raj Bala at Seema Puri, where the appellant was arrested. Raj Bala had also deposed that after midnight, the Police had come along with her father and brother Jagdish to her house and arrested the appellant.
15. The apparent contradiction in whether the statement of PW-1 was recorded at the spot or at the Police Station and the failure of the Investigating Officer to remember searching the house of the appellant on 26th August or going to the house of Appellant's sister lend credence to the version of the defense regarding the arrest of the appellant there from. Besides, in our view, failure to lodge complaint or protest with the higher police authorities cannot be taken as a reason to disbelieve the defense version. Significantly, the weapon of offence has not been recovered. Besides, the prosecution did not find or lead any evidence regarding the presence of the deceased's blood on the clothes of the appellant, which would normally have been when grappling went around for five minutes, followed by stabbing as deposed by PW-1. Prosecution had collected samples of blood stained earth from the place of occurrence but the same has not been reported as containing appellant's blood. It was the prosecution's case that the appellant had sustained injuries in his right finger in the grappling. The absence of any motive, non-recovery of the weapon of offence and absence of the deceased's blood on the clothes of the accused and the place of occurrence, failure to unravel the mystery of the third person, are the factors which have resulted in prosecution having failed to establish the guilt of the appellant beyond reasonable doubt. Coupled with the aforesaid factors, the defense version cannot be excluded as not a plausible one and dubbed as wholly incredible.
16. In these circumstances, we find this to be a case where a reasonable doubt arises as to the guilt of the appellant. The conviction of the appellant, therefore, deserves to be set aside by giving the appellant benefit of doubt.
17. The appeal is accordingly allowed giving benefit of doubt to the appellant. The appellant's bail and surety bond shall stand discharged.