The State v. Shambhu Dayal & Ors.

44. The statement made in Court by PW[2] Kamlesh giving events prior to 14-11-87 and of that day also regarding her son Naresh having been beaten by the accused, therefore, has to be taken as afterthought made after due deliberations and considerations obviously with her Advocate to whom she had been consulting time to time.‟

23. We do not find any illegality or infirmity in the above findings of the Ld. Trial Court. The testimony of PW-2 which is at variance with her earlier statements does not inspire confidence and is, therefore, totally unreliable.

24. Perusal of the testimony of the daughter of the complainant PW-3 Ms. Saroj Kumari reveals that her version is also full of contradictions and rightly disbelieved by the Ld. Trial Court. This witness has also nowhere stated that respondents Shambhu Dayal and Prakash Chand have given beatings to her brother Naresh. According to PW-3, both Shambhu and Prakash had given beatings to her mother. She has also not supported the statement of her mother to the effect that these respondents had giving beating to her brother Naresh. She has in fact deposed that accused Prakash was beating her mother with danda whereas Shambhu Dayal was giving beating with hands, fist and blows. In the meanwhile, Insp. Lal Singh had come there in civil clothes along with three other policemen. They, i.e., PW-3 along with her mother and brother had thereafter bolted the door. The door was, however, broke open and accused Lal Singh started beating her mother. She has deposed that her brother had questioned SHO Lal Singh as to why his mother was being beaten and he had also clung to his mother‟s leg. However, respondent no.3 Lal Singh had pulled her brother Naresh and threw him on the ground with force. On the exhortation of respondent no.3 Lal Singh, respondent no.1 & 2 i.e. Shambhu Dayal and Prakash Chand had beaten her mother with fist blows and danda. When she had come to rescue her mother, she was also beaten. The witness has, thus, nowhere stated that respondent no.3 Lal Singh had given beating to her brother but has deposed that he had thrown his brother on the ground. The fact of bolting the door is also not reflected in the statement of complainant PW-2 Kamlesh and the fact that her daughter PW-3 Saroj was beaten was also not deposed by PW-2 Smt. Kamlesh. Thus, there are contradictions in the statements of PW-3 Ms. Saroj Kumari which makes her testimony doubtful.

25. Ld. Trial Court has also given detailed reasons for not believing the testimony of PW-3 Ms. Saroj Kumari and it runs as follows;

47. PW-3 Km. Saroj at the time of alleged incident was of tender age being about 12 years old and as such the possibility of amenability of tutoring her cannot be ruled out at the first instance. This witness nowhere state that accused Shambhu Dayal and Prakash gave beatings to his brother Naresh. She simply stated that when on hearing noise she came out from her neighberer‟s house she saw that Shambhu Dayal and Praksh Chand were giving beating to her mother. Therefore, she does not corroborate the testimony of PW[2] Kamelsh to the effect that these accused persons also give beating to her brother Naresh. She further gave some new versions which was probably not known to the others namely PW[2] Kamlesh and PW[5] Maya Devi as they have not stated about the same and that fact is when she stated that in the meanwhile Insp. Lal Singh also came there in civil clothes along with 3/4 other policemen. She bolted the door from inside. They pushed the door with force and it was unbolted. This version otherwise would show that she, her mother and Maya Devi had bolted the door from inside and this was never the case of the complainant neither stated to the police nor in the court. She further stated that when Prakash with danda and Shambhu Dayal with hands and first blows started beating her mother on the asking of accused Lal Singh, She came to rescue her but she was also beaten and she sustained injuries. Again, this fact was not disclosed by PW[2] Kamlesh in her statement to the police or in court nor PW[5] Maya Devi stated about it. She again stated that in meanwhile Nagar and Bhajju came there and threaten them to ran away or otherwise they would be treated in the same manner in which her mother was treated. Again this fact has not been stated by PW[2] Kamlesh neither to the police nor in court. PW[5] Maya Devi also silent about it. Further, She stated that when she had taken her brother to the house of her friend in gali No.17 at the house of Sobha Devi, two policeman came at the house of Sobha Devi and took her and Sobha Devi to police station from where Sobha Devi was allowed to go but she was not and then she and her mother were taken to police station Pahar Ganj where her mother was put in lock-up and she was allowed to go away. Again, this fact has neither been stated by PW[2] Kamlesh in her any statement nor has been corroborated by PW[8] Smt. Sobha Devi. She also contradicted to her mother‟s statement as to in what accommodation they were living tenanted portion. According to PW[2] Kamlesh, the complainant the rented accommodation with her consist of one room, one kitchen, one bathroom, and one latrine but PW[3] Km. Saroj categorically stated that they were a tenant in one room only.

26. So far as testimony of PW-5 Smt. Maya Devi is concerned, there are contradictions in her statement as well. Ld. Trial Court has not believed this witness and has given the following reasons for the same;

48. Similarly, PW[5] Maya Devi while narrating the incident in court stated that accused Lal Singh to Kamlesh to police station by dragging from her hair but PW[2] Smt. Kamlesh did not talk about having her dragged from her hair. She also stated in court that accused Lal Singh uttered the filthy and abusive language to her as well as PW[2] Kamlesh but neither PW[2] Kamlesh nor PW[3] Saroj ever stated that accused Lal Singh used such filthy and abusive language. Further, as per her statement injured Naresh was taken to hospital by relatives of Kamlesh on the next day of the arrival of Kamlesh. As per the case of the prosecution narrated by PW[2] Kamlesh she returned home from jail on bail on the night of 16-11-87 and her son Naresh was admitted in hospital on 18-11-87 but as per the statement of PW[5] Maya Devi Naresh was taken to hospital on the next day of the arrival of PW[2] Kamlesh which according to her would fall on 17-11-87. PW[2] Kamlesh also stated that Ramesh and Devraj, relatives of her, had taken Naresh to RML Hospital on 18-11-87 but the MLC Ex.PW15/A reveals otherwise. As per this MLC Naresh was admitted by his mother i.e. PW[2] Kamlesh. PW[5] Maya Devi also contradicted PW[2] Kamlesh regarding the rented accommodation with her. She stated that PW[2] Kamlesh had only one room on rent. There is also a contradiction on the material fact between all the three witnesses as to how Naresh was allegedly beaten. PW[2] Kamlesh stated that accused Lal Singh hit his foot on her son and he was pushed and his left leg struck with the wall and he sustained injury in his leg. PW[3] stated that accused Lal Singh pulled her brother Naresh and threw him on the ground with force and her brother sustained injuries. PW[5] Maya Devi stated that accused Lal Singh caught hold of arm of Naresh and gave kick on his person and subsequently he fell down on the ground. It is, thus, clear that all these three witnesses have given a different account for having beaten Naresh, the deceased. This material contradiction between the three witnesses becomes more significant when it came in the evidence in court. The factum of having beaten was never disclosed by the complainant either to PW16 ACP Harmeet Singh, who recorded her statement Ex.PW2/A nor to the doctor, who recorded her statement Ex.PW2/DA.

49. Therefore, under the circumstance, the contradictory and inconsistent version of all the witnesses made after a pretty long time of the incident leads to the conclusion that such facts were given only after due deliberations and consultation. Since, such version has come out at a belated stage that too from the mouth of the interested witnesses it would not be safe to rely the same. Even otherwise, as is evident from the record there is no independent public witness to corroborate their version. Admittedly, the public persons of the locality had witnessed the incident. PW[3] Saroj has categorically stated that on the day of the incident on hearing the noise other persons of the locality also came out of the their house and they also witnesses of occurrence but strangely enough no such public witness has been examined to corroborate and substantiate the allegations levelled by these witnesses after pretty long time of the incident.

27. Thus, there are various contradictions in the statements of material witnesses. PW-3 has not stated that respondent no.3 Lal Singh had beaten her brother Naresh. She has only stated that he was thrown on the ground whereas PW-2 Smt. Kamlesh has stated that he was beaten by Lal Singh. Whereas PW-5 has stated that SHO Lal Singh had caught hold of the arm of Naresh and had given kick on his person as a result of the same he had fallen down. PW-3 has nowhere stated that respondents Shambhu Dayal and Prakash Chand had beaten her brother whereas PW-2 Smt. Kamlesh has stated so. PW-5 has deposed that respondents Shambhu Dayal and Prakash Chand had given beating to PW-2 Kamlesh. She has nowhere stated that these respondents had beaten Naresh. PW-3 has stated that they had bolted the door when respondent no.3 Lal Singh had come with police officials, however, this is not the version of PW-2 Smt. Kamlesh. On the other hand, PW-5 has nowhere deposed that door was bolted. PW-3 Ms. Saroj Kumari has further deposed that when Prakash and Shambhu Dayal were beating her mother on the direction of respondent no.3 Lal Singh, she was also beaten, but this is not the version of PW-2 or PW-5.

28. In our opinion in view of the several contradictions and inconsistencies in the statements of the material prosecution witnesses, the Ld. Trial Court has not committed any illegality by giving a finding of acquittal.

29. We are also conscious of the fact that it is a settled law that appellate court should not disturb the findings of acquittal recorded by Ld. Trial Court unless the findings are perverse and Ld. Trial Court has totally misdirected itself. In ‘Muralidhar and Ors. Versus State of Karnataka reported at (2014) 5 SCC 730’ the Hon‟ble Apex Court has discussed the law as to when the Appellate Court should interfere in the judgment of acquittal and relevant portion of Para 12 of the judgment runs as follows; „It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.‟

30. In „Bannareddy & Ors. vs. State of Karnataka & Ors., reported as 2018 (2) Crimes 94 SC’ the Hon‟ble Supreme Court has held that the High Court should interfere in appeals against acquittals only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly and if two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.

31. In the instant case the Ld. Trial Court has thoroughly appreciated the evidence and has taken a reasonable view which has formed the basis of judgment of acquittal. The conclusion reached by the Trial Court is neither palpably wrong nor based on erroneous view of the law. In the absence of any misappreciation of the evidence by Ld. Trial Court or any patent illegality committed by it while analysing the evidence, we are of the opinion that there are no grounds to interfere in the judgment of the Ld. Trial Court. As discussed earlier, the Ld. Trial Court has correctly held that there are material contradictions in the prosecution version and the evidence is not reliable and trustworthy. The witnesses have made inconsistent statements and there are material contradictions. Prosecution version is, therefore, not trustworthy and unreliable. We are, therefore, of the opinion that Ld. Trial Court has rightly taken note of the contradictions and inconsistencies in the statements of material witnesses, i.e., PW-2, PW-3 and PW-5 and acquitted the respondents for the offence charged and there are no grounds to disturb the said finding.

32. The Ld. APP for the State has, however, argued that Ld. Trial Court has acquitted Lal Singh u/s. 342 IPC for illegal confinement of PW[2] Smt. Kamlesh on 14.11.87 on the ground that the act of the SHO is covered under the protection given to the Public Servants for the acts done by them in the discharge of their official duty. It was argued that an act of illegal confinement does not fall under the protection extended to Public Servants or Police Officials. It was further argued that Ld. Trial Court has also wrongly relied upon Section 140 of the Delhi Police Act which also gives protection to police officials for the acts done by them under colour of duty. Sec. 140 of the Delhi Police Act runs as follows;

................................. (3).......................................................

33. Ld. APP has further argued that no umbrella of protection can be extended to a public servant for acts which are not done in discharge of their official duty but are per se illegal and not part of a public servant‟s duty. It was further argued that Ld. Trial court has also wrongly held that there is a limitation period of three months for entertaining any prosecution for commission of an offence by a police official unless previous sanction of the administrator is obtained and even then it cannot be beyond one year. Since the offence had taken place on 14.11.87 but the challan was filed on 12.01.1989, the Ld. Trial Court, has, therefore, held that prosecution of respondent no.3, Lal Singh u/s. 342 IPC cannot be sustained in view of the Section 140 of the Delhi Police Act. It was argued that the above reasoning of the Ld. Trial Court is not in accordance with law for the reason that act of wrongful confinement by respondent no.3 Sh. Lal Singh was not part of his duty. In this regard the prosecution has relied upon the following judgments; i) State of Maharashtra vs. Atma Ram, AIR 1996 SC 1786, ii) The State of Andhra Pradesh v. N. Venugopal and Ors., 1964 SCR (3) 743 iii) Devinder Singh & Ors. vs. State of Punjab (2016) 12 SCC 87, iv) Choudhary Parveen Sultana v. State of West Bengal & Anr. (2009) 3 SCC 398, v) S. K. Zutshi & Anr. vs. Bimal Debnath & Anr. (2004) 8 SCC 31, vi) State of Orissa v. Ganesh Chandra Jew, 2004 (8) SCC 40, vii) P.P. Unnikrishnan & Anr. vs. Puttiyottil Alikutty & Anr. AIR 2000 SC 2952 viii) Gulzar Muhamad vs. State of H.P. Anr. 2008 Cri. L.J. 350, ix) Smt. Padmamma vs. A.V.R. Narsimha Rao and Anr. 2005 Cri. L.J. 1160 x) Shabir Tambawala vs. State of Maharashtra and Anr., 1997 CriLJ 3465 xi) Ganapathy Goundan vs. Emperor 1932 AIR (Mad) 214

34. We have gone through the above judgments and are totally in agreement with the law laid down therein to the effect that protection from prosecution is available to a public servant for the acts done by him in the discharge of his official duty and not otherwise. The Ld. APP has, however, argued that alleged act of illegal confinement of PW-2 complainant Smt. Kamlesh by Lal Singh, respondent no.3 cannot be connected with discharge of his official duty. Perusal of the Trial Court record reveals that for the alleged wrongful confinement of complainant by SHO Lal Singh, the following charge was framed on 20.02.1990. „Thirdly, that you Lal Singh on the aforesaid date, time and place, forcibly took Smt. Kamlesh to the police station and kept her wrongfully confined in the police station and thereby committed an offence punishable u/s. 342 I.P.C. and within the congnizance of this court.‟

35. The words „aforesaid date and time‟ mentioned in the charge should be read as 14.11.87 at about 7.30 PM. As per evidence appearing on record, PW-2 was arrested in a case u/s. 448 IPC on the basis of a complaint registered against her by respondent no. 2, Prakash Chand. The complainant Smt. Kamlesh was thereafter arrested in the above case bearing FIR no. 138/87 and was sent to judicial custody. The question which now arises for consideration is whether the arrest of Smt. Kamlesh by respondent no.3 Lal Singh was illegal and unjustified? Perusal of the judgment of the Ld. Trial Court reveals that a closure report was filed by the prosecution in the above case. However, whether the same was accepted or not was not proved on record. The arrest of an accused in an FIR by the SHO is an act which falls in the discharge of his official duty and cannot be termed as wrongful confinement. According to complainant PW-2, she was arrested by respondent no.3 Lal Singh and produced before Ld. MM and thereafter released on bail on 16.11.1987. The above acts of SHO Lal Singh cannot be said to be beyond his scope and power as the same were done in discharge of his official duty only. Moreover, had the closure report been finally accepted, the fact whether SHO Lal Singh, i.e., respondent no.3 had wrongfully confined the complainant Kamlesh could have been considered by the court. There is no evidence on record to show that the same was accepted by the Court and has, thus, become final. In these circumstances, the contention of Ld. APP cannot be accepted.

36. Ld. APP for the state has next argued that PW-11 Dr. L.T. Ramani, who conducted the post-mortem on 26.11.87 on the deadbody of Naresh Kumar, in his report Ex.PW11/A has opined that the injuries were ante-mortem and caused by blunt force possibly by fall and were 8/9 days duration and the injuries were not sufficient to cause death. Death was due to pneumonitis as diagnosed clinically. Time since death was about 6 hours. In his second opinion, Ex.PW11/B, he has further opined that the injuries, both external and internal, did not show any sign of infection and in his opinion pneumonitis was not the result of injuries. However, he has stated that the possibility that such injuries can aggravate the condition of child cannot be ruled out. It was, therefore, argued by ld. APP that Ld. Trial Court has erred in appreciating the evidence that death was due to pneumonitis but not because of injuries caused to him by the respondents.

37. We have carefully considered the contention of Ld. APP for the state. Before we proceed further with the above contention, it needs to be kept in mind that as per our discussion in the earlier part of the judgment, we have come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. The decision on this issue will, therefore, be not of much relevance. However, since Ld. APP for the state has raised it, we will decide the same.

38. Perusal of post-mortem report Ex.PW11/A reveals that death was due to pneumonitis as diagnosed clinically. Dr. L. T. Ramani PW-11 has also opined in his subsequent opinion Ex.PW11/B that the injuries both external and internal were not the cause of pneumonitis. Though, he has stated that there is possibility of aggravation of the condition of the child by such injuries, however, in his opinion it is not definite or conclusive. Thus, PW-11 was doubtful whether deceased Naresh could have died because of alleged injuries caused to him by the respondents and, in such circumstance, benefit of doubt would certainly go to the respondents.

39. We, therefore, do not find any infirmity, illegality and perversity in appreciation of medical evidence by the Ld. Trial Court.

40. In view of the above discussion and keeping in mind the contradictions and inconsistencies appearing in the statement of material witnesses, we see no reasons to interfere with the order of acquittal passed by the learned Trial Court and, therefore, on overall analysis of the evidence, we are of the view that the appeal preferred by the State deserves to be dismissed. The appeal is, therefore, dismissed.

41. Trial Court Record be sent back.

BRIJESH SETHI (JUDGE)

SIDDHARTH MRIDUL (JUDGE) August 30th, 2019 (Amit)