State of NCT of Delhi v. Kunwar Pal @ KP

1. This is an application filed by appellant seeking condonation of 220 days’ delay in filing the present appeal.

2. Heard and for the reasons stated in the present application, the same is allowed. Delay in filing the present appeal is condoned. Appeal is taken on record. Application stands disposed of. CRL.L.P. 485/2012

3. Present leave to appeal petition has been filed by the petitioner/State under Section 378 (4) of the Code of Criminal Procedure against the judgment dated 8.2.2012 passed by learned District Judge-Cum- Additional Sessions Judge: (Incharge), NE District, Karkardooma, Delhi, in Sessions Case No.97/10, whereby the respondent has been acquitted by the trial Court for an offence alleged to have been committed under Section 302 of the Indian Penal Code.

4. The case of the prosecution before the learned trial Court was that on 2015:DHC:613 1.8.2010 at around 7.00 p.m., in Gali No.2, Pehla Pushta, New Usmanpur, the respondent caused death of one, Wakil by inflicting danda blows on his head. FIR was registered on the statement of Head Constable Dharam Singh, PW-2, who claimed to be the eye-witness of this case. Head Constable Dharam Singh has testified that he along with Constable Sandeep, PW-1, then posted in Police Station, Beat No.1, were on patrolling duty on the date of the incident. At around 7.00 p.m., they were present at Gali No.2, Pehla Pushta, and saw the respondent, who is a bad character, holding a danda in his hand and quarrelling with another person. The respondent uttered to that person that despite residing in the area he was not obeying the respondent and he would kill him. The respondent thereafter inflicted 2/3 danda blows on the head of that person. The respondent was apprehended from the spot. A phone call was made to the PCR and the injured was removed to the hospital.

5. Learned Additional Public Prosecutor for the State submits that in the statement recorded under Section 313 of the Code of Criminal Procedure the respondent admitted that he had given one danda blow on the head of Wakil and further he has also admitted of his having been arrested from the spot of the incident. Learned APP further submits that on account of the lapses of the State the trial Court has acquitted the respondent.

6. We have heard learned counsel for the parties, considered their rival submissions and also perused the record and judgment dated 8.2.2012 passed by learned trial court.

7. It may be noticed that the learned trial Court while passing the impugned judgment has carefully examined the evidence of PW-1 and PW-2, the Police officials, who claimed to be the eye-witness of the incident. In their testimony, PW-1, Constable Sandeep, and PW-2, Head Contable Dharam Singh, has testified that when they were patrolling the area they had seen a crowd at the place of the incident when they reached the spot. They had also seen the respondent holding a danda in his hand and he was quarrelling with the victim. Both the witnesses had heard the respondent threatening the victim and after uttering the threats 2/3 danda blows were given by the respondent on the head of the victim.

8. It may further be noticed that although only one public person i.e. PW- 10, owner of the tea shop near the place of occurrence, was associated with the investigation, however, he did not support the case of the prosecution. It may also be noticed that the trial court has rightly considered that there are serious contractions in the evidence of PW-1 and PW-2 and in fact PW-1 has admitted in his cross-examination that he had not seen the respondent assaulting the victim whereas in DD No.25A, recorded in the Police Station, it has been pointed out that a mad person had assaulted another person and that mad person had been taken away by the police. Another important factor is that it is not the case of the prosecution that PW-1 and PW-2 having apprehended the respondent on the spot had removed him to the police station.

9. There is no explanation before the trial court that in case PW-1 and PW- 2, both Police officials, were present at the spot of the incident, as to why the information of assault was not conveyed to the Police Control Room by them and the same was conveyed by some public person. It may also be noticed that the public witness, PW-10, who had given a call to the Police has not supported the case of the prosecution and he has denied having seen the respondent assaulting the victim. The trial Court has also examined the medical evidence and reached a conclusion that the same does not coincide with the depositions of PW-1 and PW-2. Even the post-mortem report is in conflict with the MLC, PW-12/A. We may also notice that despite being a crowded place, no independent witness was associated or examined, which creates a doubt in the case of the prosecution and makes the evidence of PW-1 and PW-2 unreliable. The MLC, PW-12/A, also shows that the victim was brought to hospital by the PCR officials. As per the MLC there was no history of loss of consciousness, patient was conscious and injuries were noticed. The victim died after a period of one week of the incident. There is no explanation why the statement of the victim was not recorded.

10. It is a settled legal position that the powers of the court in appeal against an order of acquittal are limited. The Apex Court in the case of Ghurey Lal vs. State of U.P., reported at 2008 (10) SCC 450 has laid down the following principles before granting leave to appeal against an order of acquittal: