DARSHAN KUMAR Vs. STATE
LAWS(DLH)-2012-1-441
HIGH COURT OF DELHI
Decided on January 16,2012

DARSHAN KUMAR Appellant
VERSUS
STATE Respondents

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."



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