Delhi High Court
Raj Pal vs State on 17 June, 2009
Author: G.S. Sistani
Bench: G.S.Sistani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.NO.240/2009
Date of Pronouncement 17th June, 2009
# SHRI RAJ PAL ....... Appellant
Through: Mr.Dushyant Chaudhary, Adv.
Versus
STATE (NCT OF DELHI) & ORS. ....... Respondents
Through: Mr.Lovkesh Sawhney, APP for State
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
G.S. SISTANI, J:
1. Present appeal is directed against the judgment dated
13.12.2008 and order on Sentence dated 18.12.2008 passed by
the learned Additional Sessions Judge in C.C.No.3214/4, under
sections 308/426/511/34 IPC, P.S. Seelam Pur, Delhi, by virtue
of which the appellant has been convicted and ordered to be
released on probation for a period of one year on his furnishing
a personal bond in the sum of Rs.10,000/- with one surety of the
like amount with an undertaking of good behaviour.
2. The brief facts of this case as noticed by learned Additional
Sessions Judge are that one Jagdish was residing in jhuggi 506
Gurudwara Road, New Seelampur, Delhi. He was in possession
of a kiosk in front of the jhuggi. One Rohtash also laid claim
over this kiosk which resulted in ill-will between Rohtash and his
family on the one hand and Jagdish and his family on the other,
CRL.A.NO.240-2009 Page 1 of 12
over possession of that kiosk. On 20.10.2004 at about 1:15
p.m. Rohtash and his wife Sona tried to take possession of the
said kiosk. Appellant, Rajpal helped them in their activities.
Dharambir and his mother, Savitri objected which resulted in an
altercation between them. In the said altercation, Dharambir,
sustained injuries over his head. The appellant came for help of
Rohtash and his wife Sona. Jagdish was informed about the
incident, who reached at the spot and removed Dharambir to
the Police Station. At the police station he was advised to
remove his son to the hospital for treatment, Accordingly,
Dharambir was taken to GTB Hospital, Shahdara. He was
treated by Dr.Mayank Dabral and a MLC was prepared. ASI Rati
Ram reached the hospital but opted not to initiate any action in
the matter. Mr.Jagdish thereafter approached SHO Police
Station Seelampur, but no action was initiated on his complaint.
He approached the DCP of the area on 23.10.2004, but in vain,
ultimately he filed a complaint before the concerned Magistrate
on 5.11.2004. The Magistrate took cognizance of the
complaint. He examined Mr.Dharambir, Smt. Savitri,
Mr.Subhash, Mr.Jagdish and Sushil Kumar, record clerk under
section 200 of the Cr.P.C. and after hearing the complainant,
accused were summoned for offences punishable under
sections 308, 452 and 506 IPC. The matter was thereafter
committed to the Court of Sessions on 12.7.2007. To
substantiate the charge, the prosecution examined seven
witnesses, however, no evidence was led by the defence. Out
CRL.A.NO.240-2009 Page 2 of 12
of accused persons, i.e. Rohtash, Sona and Rajpal, only Rajpal
has preferred the present appeal.
3. It is contended by learned counsel for the appellant that the
judgment and order of the learned Additional Sessions Judge is
contrary to law and also against the evidence and material
available on the record and thus the same has resulted in gross
miscarriage of justice. He also submitted that the judgment
and order is full of conjectures and surmises as the appellant
has been convicted and sentenced without any substantive and
corroborative evidence of any eye witness or any other
independent witness. It is also urged before this Court that on
the basis of the sole evidence of Dharambir, the victim, which
has been disbelieved, the learned Additional Sessions Judge has
acquitted the accused of the charge for the offence punishable
under sections 426 read with section 511 and 452 of the IPC.
However, for the offence under section 308 read with section 34
IPC, the learned Additional Sessions Judge has relied upon the
evidence of Dharambir and convicted the accused persons
including the appellant.
4. Learned counsel for the appellant contended that there are
material contradictions between the evidence recorded under
section 200 Cr.P.C. and the evidence recorded in Court.
Learned counsel further submitted that the appellant is a
complete stranger to the incident as he has no concern either
with Mr.Jagdish and his family and /or with Mr.Rohtash and his
family.
CRL.A.NO.240-2009 Page 3 of 12
5. Learned counsel for the appellant submits that the appellant
has been falsely implicated in this case as the appellant was
neither present at the spot nor he is in any way related either to
the complainants or to the accused persons and has only been
named at the behest of one Sh. S.S. Singh, Advocate, who had
forced the victim to give evidence and include his name.
Counsel further submits that the first complaint dated
23.10.2004 filed by the complainants before the Deputy
Commissioner of Police would show that the appellant was not
named. Counsel also submits that even during the evidence
recorded in the Court, the victim, PW-3, Dharambir, was not
able to identify the appellant by name. Counsel next submits
that the learned Trial Court did not rely on the evidence of the
father of the victim as he was not witness to the incident but
was only a witness of removing the inured to the hospital.
Moreover, the evidence of PW-4, brother of the victim was also
not relied upon. Counsel lastly submits that no specific role has
been attributed to the appellant and injuries were not caused
by the appellant to Dharambir.
6. While opposing the present appeal, learned counsel for the
State submits that the victim had duly identified the appellant
as well as he was part of the group of persons who came,
prepared with Lathis and iron rods to demolish the kiosk.
7. It is contended by the learned counsel that simply by saying
that the appellant has been falsely implicated at the instance of
Sh. S.S. Singh, Advocate, is no ground to allow the appeal. The
same cannot be maintainable as no suggestions were put to the
CRL.A.NO.240-2009 Page 4 of 12
victim during his cross-examination by the appellant. Learned
counsel for the appellant, however, submits that this stand was
taken by the appellant in the statement recorded under Section
313 of the Cr.P.C. and also the questions had been put to the
father of the victim. Learned counsel for the appellant submits
that the present appeal is liable to be allowed.
8. I have heard learned counsel for the parties, who have taken
me through the record of the case. The incident in the present
case took place on 20.10.2004. It is stated that PW-1,
Mr.Jagdish (father of Dharambir), is the sole owner of the kiosk.
The alleged altercation took place between the two factions on
account of possession of the kiosk. The learned ASJ has rightly
observed that this witness (PW-1) was not present at the time
of the incident and had reached the spot only after the incident
was over. PW-1 had removed his son Dharambir to the Police
Station and thereafter to the GTB Hospital. He had lodged a
report dated 23.10.2004 with the DCP. In this report, Mr.Jagdish
had named Rohtash, his wife (Sona) as well as their son-in-law
(Sunil) along with certain unknown persons. He had
categorically stated that Rohtash, his wife and their son-in-law
had threatened to murder his sons and his wife. He further
stated that Rohtash and his wife (Sona) had caught hold of
Dharambir and Sunil gave two lathi blows on his head, as a
result of which blood started oozing out. When his son Subhash
and his wife tried to save his second son (Dharabmir) from their
clutches, then Rohtash and his wife (Sona) and their son-in-law
(Sunil) rushed towards them in order to attack them with lathis
CRL.A.NO.240-2009 Page 5 of 12
and iron rods. But his wife and son in order to save their lives
ran inside their jhuggi. In this complaint the present appellant,
Rajpal, has not been named.
9. It is pertinent to note that in the complaint filed by Mr.Jagdish
under section 200 of the Code of Criminal Procedure, this
appellant has been named. The prosecution had examined PW-
4, Subhash (son of Mr.Jagdish). However, his evidence was not
considered to be reliable or trustworthy by the learned
Additional Sessions Judge. The prosecution had also examined
one Tejender Dutta, PW-5, who was stated to be an eye witness,
but on close scrutiny and examination of his evidence, the same
was found to be unreliable and the learned trial Court has
observed that the story projected by this witness is concocted
and he has fabricated facts with a view to present a convenient
story. PW-6, Ms.Devki, is the sister of Jagdish. A careful
reading of her evidence would also show that she was not
present at the spot at the time of the incident, as she had
stated that on 20.10.2004, she had gone to her job as she
works as a maid servant in the house of one Dr.Virender Jain
and reported home at 3:00 p.m. She found the kiosk, which
was outside the house of Jagdish in a broken condition and
further deposed that Savitri narrated facts to her. Thus the
evidence of PW-6 cannot be relied upon.
10. Out of seven witnesses, who have been examined by the
prosecution, the evidence of two witnesses has been found to
be unreliable and untrustworthy. PW-2, is the doctor, who has
proved the MLC. PW-1, Jagdish was admittedly not present at
CRL.A.NO.240-2009 Page 6 of 12
the spot at the time of the incident and the same holds true for
PW-6 Smt.Devki. This leaves only two witnesses i.e. victim,
Dharambir, PW-3 and his mother Smt.Savitri, PW-7.
11. Dharmbir PW-3 is the victim who sustained head injuries and
PW-7, Savitri, mother of Dharambir are the witnesses and on
the basis of their evidence the trail court has convicted the
appellant. The evidence of these two witnesses is of utmost
importance and Dharambir is the star witness of the
prosecution. It may be noticed that Dharambir had sustained
head injuries which finds corroboration in the MLC Ex.PW-2/A,
which would show that on account of these injuries he was
removed to the GTB hospital. PW-3, Dharambir had stated in
his examination that on 20.10.2004 at about 1:00 p.m. he was
working in his kiosk / shop which is near to his house. He
identified Rohtash and Sona as his neighbours. He deposed
that third accused is their accomplice (appellant herein), whose
name was not known to him. Dharambir further stated that all
the three accused persons along with their associates, namely,
Gunjan and Sunil came to the kiosk, duly armed with lathis and
iron rods with one or two other unknown persons and started
demolishing the kiosk. Dharambir resisted at this juncture.
Thereafter, Rohtash and Sona caught hold of him and Sunil
gave a lathi blow on his head. He further deposed that Sunil is
not present in the Court today. PW-3 stated that he started
bleeding from his head and in the meantime his mother (Savitri)
and brother (Subhash) reached to save him. Accused persons
assaulted them as well. In the cross-examination this witness
CRL.A.NO.240-2009 Page 7 of 12
has also reiterated that Rohtash had caught hold of him from
his left shoulder and Sona had caught hold of him from the right
shoulder.
12. I have carefully perused the evidence of PW-3, Dharambir, the
victim. A bare reading of his evidence would show that he in
his evidence has neither named this appellant, Rajpal, as the
person, who attacked him or who had caught hold of him while
lathi blows were given over his head. Dharambir has
categorically stated that all the accused persons had come to
the spot armed with lathis and iron rods and they started
demolishing the kiosks, however, Rohtash and Sona had caught
hold of him and Sunil gave lathi blows over his head. He has
not named the appellant as the person, who inflicted the blows
over his head. Dharambir further deposes that after he was hit,
his mother and brother reached there to save him. The
accused persons assaulted them as well and then his mother
and brother ran towards the house to save themselves. Thus,
nowhere does PW-3, Dharambir, mentions the name of the
appellant, as the person who assaulted him. At this juncture it
would be appropriate to reproduce the evidence of Smt. Savitri,
PW-7:
"Accused persons, are known to me. I identify
them. Accused persons are my neighbours. A kiosk
was installed in front of my Jhuggi. Accused
persons were laying claim on that wooden kiosk.
On 20.02.2004, at about 1 or 2 p.m., accused
persons, came there to demolish my kiosk. Again
said I am not certain about the date. In that month
Nav Durga festival was to be celebrated, when this
incident occurred. Accused persons, started
demolishing out kiosk. When we people objected,
then they assaulted my son Dharambir. Accused
CRL.A.NO.240-2009 Page 8 of 12
persons were armed with lathies and clubs. They
wielded blow over the head of Dharambir. Accused
Rohtash had wielded blow over the head of my son.
He was overpowered by Sunil and Sona. Sunil is not
present before the court. Raj Pal was not present at
the spot at that time."
13. As per Smt.Savitri, the accused persons started demolishing the
kiosk and when an objection was raised they assaulted her son,
Dharambir and accused Rohtash has wielded a blow over the
head of his son. She has categorically stated that Rajpal was
not present at the spot at that time.
14. It would also be useful to take into consideration the
observations made by the Hon'ble Supreme Court of India as far
back as in the year 1957 in the case of Swarn Singh Ratan
Singh Vs. State of Punjab, AIR 1957 SC 637 that in criminal
cases mere suspicion, however, strong, cannot take place of
proof. The court must also take into consideration that an
accused is presumed to be innocent till charges against him are
proved beyond reasonable doubt. Mere suspicion, however,
strong it may be, cannot take the place of legal proof.
15. As a final court of facts, the High Court is entitled to re-appraise
the evidence and arrive at its own independent conclusion as to
the guilt or innocence of the accused. The Court must thus be
satisfied that the case of the prosecution is substantially true
and that the guilt of the appellant has been established beyond
reasonable doubt. It is only when the prosecution has proved its
case beyond reasonable doubt that conviction cannot be
disturbed in appeal. It will be useful to reproduce the
observations of the Hon'ble Supreme Court in the case of Kali
CRL.A.NO.240-2009 Page 9 of 12
Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773
which are as follows :-
"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. 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 of that doubt. The
rule regarding the benefit of doubt also
does not warrant acquittal of the
accused by resort to surmises,
conjectures or fanciful considerations.
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.
The guilt of the accused has to be
adjudged not by the fact that a vast
number of people believe him to be
guilty but whether his guilt has been
established by the evidence brought on
record. Indeed, the courts have hardly
any other yardstick or material to
adjudge the guilt of the person arraigned
as accused. Reference is sometimes
made to the clash of public interest and
that of the individual accused. The
conflict in this respect, however is more
apparent than real.
CRL.A.NO.240-2009 Page 10 of 12
It is no doubt true that wrongful
acquittals are undesirable and shake the
confidence of the people in the judicial
system, much worse, however, is the
wrongful conviction of an innocent
person. The consequences of the
conviction of an innocent person are far
more serious and its reverberations
cannot but be felt in a civilised society.
All this highlights the importance of
ensuring, as far as possible, that there
should be no wrongful conviction of an
innocent person. Some risk of the
conviction of the innocent, of course, is
always there in any system of the
administration of criminal justice. Such a
risk can be minimised but not ruled out
altogether."
16. Applying the aforesaid principles to the facts of the present
case, I find that in the complaint dated 23.10.2004 to the DCP,
Jagdish had not mentioned the name of this appellant. The
mentioning of this appellant in the complaint before the
Magistrate under section 200 Cr.P.C. seems to be an
afterthought. Further the star witness of the prosecution i.e.
the victim, Dharambir has categorically stated that Rohtash and
his wife, Sona had caught hold of him and Sunil gave two lathi
blows on his head. Dharambir has not named Rajpal as the
person who assaulted him. The only other witness, who has
been relied upon by the trial court is Smt.Savitri, mother of the
victim, who has also categorically stated that Rajpal was not
present at the spot.
17. The case of the prosecution is that the Jagdish resides in a
jhuggi and there was a dispute between Jagdish and his family
member on the one hand and Rohtash and his family member
on the other. The other co-accused was Sona, wife of Rohtash
and the other persons named at the spot were the daughter
CRL.A.NO.240-2009 Page 11 of 12
and Sunil (son-in-law of Rohtash). In my considered opinion, it
is not established beyond reasonable doubt that the appellant,
Rajpal was present at the time of the incident. PW-3, victim,
and PW-7, his mother, star witnesses, have not named the
appellant who inflicted the blows on PW-3 nor he was the one
who caught hold of PW-3 and as per the evidence of PW-7
appellant was not present at the spot. Thus no case is made out
against the appellant, Rajpal. Accordingly, the present appeal
is allowed. The judgment dated 13.12.2008 and order on
sentence dated 18.12.2008 passed by learned Additional
Sessions Judge in C.C.No.3214/4, under sections
308/426/511/34 IPC, P.S. Seelam Pur, Delhi, against the
appellant alone is set aside. Bail bonds be cancelled and surety
be discharged.
G.S. SISTANI, J.
th June 17 , 2009 'ssn' CRL.A.NO.240-2009 Page 12 of 12