JUDGEMENT
-
(1.)The appellant is aggrieved by the judgment of learned
Additional Sessions Judge dated 17.01./2011 convicting him and two
others for the offences punishable under Sections-302/323/34 IPC.
(2.)At the outset, it is pointed out that the appeal of the co-accused
was decided on 15.09.2011 in Crl. Appeal No.535/2011 (Rameshwar
Prasad & Anr. v. State). For the sake of convenience, it would be
useful to extract the factual narrative in Rameshwar Prasad s case; the
same is as follows: -
"2. The prosecution s case is that on 2.11.2008 in the late
evening around 10/10:30-10:45 pm, in front of plot No.18/38,
Gali No.5, Anand Parbat Industrial Area, the present
appellants and one Darshan (the third co-accused, who is not a
party to the present appeal) had inflicted injuries on Shanker
(hereafter referred to as deceased) with iron rod "saria". In
this case, the FIR was registered at PS Sarai Rohilla on an
intimation received about the attack, by the police. The
prosecution relied principally on the eye witnesses testimonies
of PW-3 and 4 i.e. the brother and wife of the deceased, who
died without recovering from the coma, caused as a result of
the injuries suffered by him, on 04.11.2008. The prosecution
also relied upon the testimony of PW-5, in support of its case
about the recovery of sarias, the murder weapons in this case.
After the arrest of the accused, the charge-sheet was initially
filed under Section-304 read with 323/34, IPC. The Trial Court
after considering the materials on record, framed charges
under Sections-302/323/34, IPC. The accused pleaded not
guilty and claimed trial. After due consideration of the material
on record, which included, the testimonies of the witnesses and
the material exhibits, the Trial Court concluded that the
prosecution had established the guilt of the accused for the
offences they were charged with, beyond reasonable doubt and
handed down the impugned judgment and order."
(3.)The relevant discussion as to the evidence and the reasoning of
the Court is found in the following portions of the judgment: -
8. We have considered the submissions as well as the
materials on record; we have also carefully gone through the
original records of the Trial Court, summoned by the Court for
hearing the present appeal.
9. So far as the argument of Mr. Vivek Sood, learned
counsel for the appellants concerning the testimonies of PW-3
and 4 is concerned, while there is no doubt that these witnesses
were related to the deceased Shanker, that itself, is not a
disabling circumstance. There can be, of course, situations,
where the depositions of relatives of the deceased or a victim
requires close scrutiny. At the same time, it has been
repeatedly held by the Courts that when an eye witness who is
also a relative of the deceased, joins the investigation and
deposes during the trial, the Court has to be alive of the fact
that he would be anxious to ensure that justice is done and the
real culprit is brought to book. In other words, he would be
anxious to ensure that the person guilty of the offence is
actually implicated and would not go out of the way to falsely
implicate or involve anyone else. We also notice that PW-3
Uma Shanker was injured during the attack. This circumstance,
to our mind, strengthens the probability of his presence and his
testimony being genuine and truthful. The prosecution has
been able to show the nature of injuries by producing
Ex.PW-12/B, the MLC of this witness.
10. PW-3 stated that the deceased and his family - including
him - used to sleep near one Chadha s factory. During Diwali
in 2008, one of the appellants i.e. Rameshwar with others were
bursting crackers. This was apparently objected to by the
deceased Shanker. However, he did not pick up any quarrel
since the occasion was a festive one i.e. Diwali. He deposed
that on 02.11.2008 at about 10:30 PM, he along with Shanker
and his family was about to go to bed. Shanker came out to
attend the call of nature and at that time, PW-3 noticed the
appellants and Darshan in the gali. The appellants
Rameshwar and Mukesh were apparently carrying sarias.
They gave blows to Shanker. Darshan, according to PW-3, was
giving him fist blows. The witness claimed to have rushed to
the spot to save his brother; upon which, Mukesh gave him
saria blow on the left arm and Rameshwar and Darshan kicked
him and gave fist blows. Apparently, at that time, Sunita, the
deceased s wife (who also deposed as PW-4), reached the spot
and raised an alarm. On hearing this, the accused fled the
spot. PW-4 has also deposed in much the same fashion and
corroborates the version given by PW-3. We noticed that
despite cross examination of these two witnesses, their
testimonies and versions remain more or less unshaken as
regards the previous evening s incident, the attack on Shanker
as well as the identity of the assailants.
11. The Doctors, who recorded the MLC and also conducted
the post mortem are PWs-6, 9 and 12. The testimony of PW-12
lists out the following injuries upon Shanker:
(i) Lacerated wound 3 cm below the right eye.
(ii) Lacerated would 4 cm over the right occipital region.
(iii) Abrasions were found 1x1 cm over the ulnar aspect of the
right distal 1/3
rd
fore arm.
(iv) Abrasion 3 cm over the left upper chest.
(v) Abrasion 1x1 cm over the lateral aspect of left elbow.
12. The medical evidence also is that except the injury no.2,
i.e., "lacerated would 4 cm over the right occipital region"
which was caused by the iron rod, the other injuries were
possibly caused by kicks and fist blows. According to PW-6,
the cause of death was craniocerebral damage consequent
upon blunt force impact to the head. PW-9 stated that cause of
death was the impact of saria which led to the cardio arrest.
13. Having regard to the entire conspectus of the facts and
the limited jurisdiction of the High Court in interfering with the
findings of the Trial Court, we are of the opinion that the
testimonies of the PW-3 and PW-4 are credible and trustworthy
as regards the incident prior to the fatal attack, the sequence of
events which occurred on 2.11.2008, which ultimately
culminated in the death of Shanker. However, this by itself is
not dispositive of the appeal, since we are also of the opinion
that the alternative argument put forward by the appellant s
counsel is substantial and requires some consideration."