Sunil Kumar v. The State

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest? MUKTA GUPTA, J. (ORAL) The appellant in the present case has been convicted for an offence punishable under Section 304 Part II IPC and awarded a sentence of Rigorous Imprisonment for five years. Briefly the prosecution case is that on 18th August, 1989 the appellant and his father Som Nath quarrelled with Vinod Kumar and the appellant hit Vinod Kumar with a brick resulting in an injury on the forehead above his left eye brow. The injured was taken to the hospital but unfortunately he expired the next day. The charge sheet was filed under Section 304/34 IPC against the appellant and his father however the learned Additional Sessions 2010:DHC:5440 Judge charged the Appellant and his co-accused for offence punishable under Section 302/34 IPC. The learned Trial Court acquitted co-accused Som Nath for the reason that there was no evidence available against him and he could not be convicted with the aid of Sec. 34 IPC. As regards the present appellant the Trial Court observed that since the quarrel between the appellant and the deceased was sudden and happened without any premeditation on the spur of the moment, on a very trivial issue of spreading a cot and the weapon of offence i.e. the brick used by the accused Sunil Kumar also could not be termed as deadly, he was convicted for an offence punishable under Section 304 Part II IPC. Learned counsel for the appellant contends that there are material contradictions in the statements of the alleged eye witnesses. PW[3] who is the complainant in his examination-in-chief stated that Som Nath caught hold of Vinod whereas Sunil Kumar hit Vinod with a brick on his head which struck at his eye brows. Vinod started bleeding. Satish and he took his brother to the hospital where he expired the next day. However, in his cross-examination the witness states that the accused Sunil i.e. the appellant, threw the brick from the roof. The other brother of the deceased Satish has been examined twice as PW[4] and as Bachan Singh PW[8]. This exercise of examining one person twice as prosecution witness in two different names is stated to be clearly mala fide to plant number of eye witnesses against the appellant. Even in the two testimonies of Satish @ Bachan there are material contradictions. Further, the weapon of offence has not been recovered. The Investigating Officer in his testimony states that the site plan was prepared after a period of 7-8 days without the spot being identified by any witness. Since the accused Som Nath has been acquitted in view of the unreliable testimony of these witnesses, the Appellant also deserves to be acquitted. In the alternative it is stated that the appellant has already undergone a sentence of about two years and he being the sole bread earner for his three small school going children, he be released on the period already undergone. Learned APP on the other hand contends that though there are minor discrepancies in the statement of the witnesses, however PW[3] and PW[4] have categorically deposed that the appellant hit the deceased by throwing brick at him resulting in the injury causing the death of Vinod Kumar. It is further stated that though one witness cannot be examined twice in two different names, however, in the present case when the witness appeared in the witness box he has stated that he was known by both these names. The testimony of eye witnesses is corroborated by the MLC and the post-mortem report. Thus, the appeal deserves to be dismissed. Having heard learned counsel for the parties and perused the record, it is evident that there are material contradictions in the testimonies of the eye witnesses. As per the deposition of PW[3] Ram Pal, Som Nath caught hold of Vinod and the present appellant hit him with a brick which struck at his eye brow and in cross-examination it is stated that the appellant threw the brick from the roof. PW[4] Satish in the witness box states that a scuffle ensued between Som Nath and Vinod and at this the appellant Sunil Kumar came and hit Vinod with a brick which hit him at his eye brow. This witness again appeared as PW[8] Bachan Singh and it is at this stage in reply to a court question he answered that he was also known as Satish and had earlier deposed before the court in this case. In his testimony as PW[8] this witness Bachan Singh @ Satish states that an altercation took place between Som Nath and Vinod, thereafter he and Ram Pal intervened. According to him, Som Nath caught hold of Bachan Singh and the appellant Sunil Kumar hit Vinod with a brick as a result of which he became unconscious. In his cross-examination he states that on the day of occurrence abuses had already taken place when he sat down for taking his meals and he saw the appellant throwing a brick on Vinod. Vinod and Sunil had grappled with each other before Vinod was hit by Sunil with a brick. The appellant Sunil threw the half brick at a distance of about 8 feet in the gali. Thus according to him, the appellant was in the gali whereas PW[3] Ram Pal, states that the appellant threw the brick from the roof. Though, the prosecution could not have examined a witness twice in two different names, however this examination of the witness twice would certainly inure to the benefit of the Appellant as he would be entitled to the benefit of doubt arising due to the contradictions arising. PW[3] Ramphal in his cross examination has made three different statements one after another about the place of incident. He states that the quarrel took place inside the house, than says at the gate of the house and in the third sentence, that it took place outside the court yard of the house. As regards the court yard also he has made three statements that court yard is separate from the street, later volunteered that by court yard he means street and then says that courtyard (Angan) means open space outside the door. There are material contradictions in the testimony of eye witnesses as to whether the deceased was caught hold or not and the manner and place from where the deceased was hit. The laxity of the investigation in the present case does not end by examining the alleged eye witness twice during the investigation and the trial, it continues throughout the investigation and the trial. The Investigating Officer has failed to collect any other evidence that could corroborate the testimony of eye witnesses. The Investigating Officer has neither seized the clothes of the deceased which were blood stained nor recovered the weapon of offence i.e., the half brick. Moreover, the site plan and other documents have also been prepared in a shoddy manner without any basis in the absence of witnesses. Though errors in the investigation should not discredit the testimony of eye witnesses, however, when there are contradictions in the testimony of the eye witnesses, then these laxities assume importance as there is then lack of corroborative evidence. As per PW[3] Ramphal, there were disputes between the two families earlier as well. Indubitably minor inconsistencies in the statements of the eye witnesses are normal. However, major and inherent inconsistencies on material points discredit the testimony of the witness. The testimony of the eye witnesses is not corroborated by any independent witness. Moreover, in case of testimony of relation witnesses where there is previous enmity and the testimony does not inspire confidence, it is a rule of prudence to seek corroboration from independent evidence. Thus, I am of the opinion that contradictions as pointed out by the counsel for the Appellant and noted hereinabove are material. Moreover, the prosecution has not been able to corroborate the testimony of the eye witnesses with any other evidence on record. As the prosecution has not been able to prove the case against the Appellant beyond reasonable doubt, the Appellant is entitled to the benefit of doubt. Hence the Appellant is acquitted of the offence charged. The bail bond and the surety bond are discharged.

MUKTA GUPTA, J. NOVEMBER 10, 2010