Delhi High Court
State vs Kuldeep Kumar on 12 May, 2011
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, G. P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON:12.05.2011
+ CRL.A.76/1998
STATE ..... Petitioner
Through: Mr. Jaideep Malik, APP.
versus
KULDEEP KUMAR ..... Respondent
Through: Mr. M.A. Khan, Advocate along with respondent in person.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE G. P. MITTAL
1. Whether the Reporters of local papers YES may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) %
1. In this appeal, the State impugns a judgment and order of the learned Addl. Sessions Judge dated 31.07.1997 in S.C. No. 207/1994.
2. The prosecution case was that Kuldeep (hereafter referred to as "the respondent") and Om Prakash lived in Bharthal Village, and were neighbours but not on good terms. It is alleged that the respondent's family used to throw garbage in front of Om Prakash's house which led to frequent quarrels. The prosecution alleged that a similar quarrel had occurred on 15.10.1988 at 06.00 am. On the same day, the respondent - at about 10.40 am - drove his three-wheeler scooter and hit Naresh Kumar (the son of Om Prakash), aged 10 years, which resulted in serious Crl.A.76/1998 Page 1 injuries. Naresh was rushed to the hospital and declared "Brought Dead". The prosecution alleged that the incident was witnessed by Laxmi Devi, sister of the deceased Naresh Kumar's father-Om Prakash, who deposed as PW-12, and Satish, brother of the deceased Naresh - who deposed as PW-11. The police had initially registered a First Information Report (FIR), alleging commission of offences under Section 279/304A IPC by the respondent. Om Prakash, the deceased's father was dissatisfied with this and moved higher authorities, which led to further investigations. PW-12 had initially recorded her police statement on 15.10.1988 - as also was the case with PW-11. Subsequently, her supplementary statement was recorded on 02.11.1988. PW- 11's supplementary statement was recorded on 04.11.1988. In these circumstances, the Trial Court charged the respondent for committing the offence punishable under Section 302 IPC. He stated that he was innocent and claimed trial.
3. The prosecution relied upon the testimony of 18 witnesses; primarily the eyewitness accounts of PW-11 and 12. After considering all the materials on record, the Trial Court concluded that the prosecution could not bring home the respondent's guilt and accordingly acquitted him of the charges.
4. It is contended that the Trial Court committed an error in not appropriately appreciating the evidence of PW-12, who clearly deposed about the manner of the incident, which revealed a premeditation or at least knowledge that the act would result in grave injuries that would, in all likelihood, result in the death of Naresh. It was further submitted that the Trial Court was swayed by minor discrepancies in the evidence of PW-12, primarily, the difference in the two statements, but completely ignored the fact that the incident had not occurred in broad daylight and both the witnesses - PW-11 and 12 were uniform about how it occurred. There could have been no doubt that the respondent had an intention to kill the deceased out of spite, on account of his previous enmity with Om Prakash and he, therefore, utilized the opportunity when it presented itself to him.
5. Dealing with the testimony of Laxmi Devi, PW-12, the Trial Court noticed that in the initial statement, Ex. PW-12/A dated 15.10.1988, the witness had stated that the respondent was driving his three-wheeler in a rash and negligent manner. She had omitted any mention about the enmity between Om Prakash and the respondent, or even alleged that he had intentionally hit the deceased Naresh. Learned ASJ noticed that in the subsequent statement of 02.11.1988, the Crl.A.76/1998 Page 2 witness deposed that she was standing in front of the door along with PW-11, Satish, when the deceased was standing in front of the chaupal. Respondent allegedly drove his three-wheeler fast towards Naresh, who tried to save himself and moved towards Sada Ram's house. The respondent pursued him (Naresh), speeding his scooter behind him and hit him.
6. The Trial Court noticed the discrepancies between the earlier statement of PW-12 as well as what she deposed in Court; it also noticed the discrepancies in the statement of PW-11 and the inter se conflict between the two witnesses, who are alleged to have been present at the time of the occurrence. The Trial Court observed in this regard as follows:
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21. A comparison of the original complaint of Smt. Laxmi Devi Ext. PW12/A with her supplementary statement dated 2.11.88 and her statement under Section 161 Cr.P.C also dated 2.11.88 shows marked improvement between her original statement and her subsequent statements. It was in her subsequent statements and her testimony in court that she, for the first time, disclosed the fact that her nephew Naresh on seeing the three wheeler scooter approaching him at a fast spend ran towards the gali of Sadar Ram in order to save himself but Kuldeep Kumar chased him and ultimately hit him with his three wheeler scooter. Again, it was only in her supplementary statement that she mentioned about the enemity between his brother Om Prakash and accused Kuldeep Kumar and the fact that a dispute took place between them on the morning of 15.10.88. The supplementary statements were recorded on 2.11.88 nearly after seventeen days of the incident. With so much of time lag between the first statement and the later statements, the possibility, in my view, cannot be ruled out that the facts originally mentioned were twisted in order to get the accused booked under a graver offence.
22. The Apex Court in a Judgment reported in 1996 (1) CC cases page 153, State of Haryana Versus Rajender Singh upheld the acquittal of the accused persons under Section 304B IPC on the ground that soon after the death of the deceased, on 27.3.89, her two brothers made statements during the inquest proceedings stating that nobody was at fault and that there was no enemity or ill- will between the two families. The parents of the deceased who later made statements against the accused persons about the demand of dowry were not relied upon because of the statements of her brothers. Taking cue from the said judgment I am also of the view that initial statement of Smt. Laxmi Devi which was made soon after the incident cannot be ignored. Being much earlier in point of time, it is this statement which has to be given more weightage than the other. If, as claimed by Smt. Laxmi Devi, the incident had taken place in her presence there was no reason for her in not giving the details thereof on the very day of the incident. It was also well within her knowledge that there was enemity between her brother Om Prakash and the accused. Yet, even this fact too was not disclosed Crl.A.76/1998 Page 3 to the police. It is not her case that she disclosed the details to the police but those were not recorded. All that she stated while testifying in court was that she was nervous when she made the statement Ext. PW12/A. A reading of statement Ext. PW12/A does not however give such an impression. It carries sufficient details of the incident. Had she been that nervous, such details would not have appeared in her complaint.
23. As regards the testimony of Satish (PW11) the brother of the deceased, he also, like Smt. Laxmi Devi, deposed that his brother was standing in front of the chaupal of the village, while he and Laxmi Devi were standing in front of their house. As per him, on seeing the scooter of the accused which was coming at a fast speed his brother tried to save himself by climbing over a stone lying on one side of the street but the accused intentionally dashed against his brother from the front side of his three wheeler scooter. The testimony of this witness also suffers from the same infirmity as that of Laxmi Devi. His statement, at the first instance, was also recorded on 15.10.88. But like Laxmi Devi he too neither gave details of the manner in which the accident took place nor mentioned about the enemity between his father and the accused.
24. Besides the above, there are other reasons also to discard the testimony of Smt. Laxmi Devi. According to her initial statement dated 15.10.88, she was standing in front of her house alongwith her two nephews Satish Kumar and Naresh Kumar and it was there that her nephew Naresh was hit by Kuldeep Kumar in a three wheeler scooter. The fact that deceased Naresh at the time of the accident was present at the chowk in front of the chaupal emerged only in her subsequent statement. In case her original statement is to be believed that Naresh was hit while he was standing alongwith her and Satish, her supplementary statement and the testimonies of both she and Satish that she was standing at the chaupal and he even made an attempt to save himself by running away but was chased by the accused, are liable to be disbelieved.
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7. The Trial Court further found that apart from the inter se discrepancies in the two statements of PW-12, her brother PW-11 did not support the testimony that Naresh ran towards Sada Ram's house and that the respondent nevertheless chased and hit him. Furthermore, another vital discrepancy or inconsistency was that PW-1 contradicted PW-12. The latter had stated that after the incident, the respondent fled the spot whereas PW-1 stated that when she reached the spot, 10-12 persons were there, which included the respondent.
8. There is no doubt that the motive assumes secondary role where eyewitness testimony is credible in a criminal case. Here, however, the charge of murder and the offence under Section 302 could not be established. The prosecution was unable to present any credible evidence other Crl.A.76/1998 Page 4 than the eyewitness testimony of PW-11 and 12, who contradicted each other on critical and material aspects about the sequence and the manner of the incident which led to the death of Naresh. It hardly needs to be repeated that the prosecution has to prove every fact and circumstance beyond reasonable doubt to establish the guilt of accused. In this case, however, it has failed to do so.
9. After considering the evidence, and the Trial Court records, and being conscious of the fact that an appeal against acquittal has to be interfered with in rare cases where the impugned judgment discloses substantial and compelling reasons in that regard, this Court is of the opinion that the impugned judgment does not reveal any infirmity of that kind. For these reasons, the appeal has to fail and is accordingly dismissed.
S. RAVINDRA BHAT (JUDGE) G. P. MITTAL (JUDGE) MAY 12, 2011 Crl.A.76/1998 Page 5