Darshan Kumar v. State

Order dasti.

S. RAVINDRA BHAT, J

S.P.GARG, J

JANUARY 16, 2012 /vks/

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 16.01.2012 + CRL.A. 1350/2011 DARSHAN KUMAR ..... Appellant Through: Mr. Michael Peter with Mr. Dharmendra Vashishtha, Advocates. versus STATE ..... Respondent Through: Mr. Sanjay Lao, APP. CORAM: MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) % 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: - Page 2 "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 Page 3 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 othe