State vs Harish and Others

S. Ravindra Bhat, J.—The State by this petition seeks leave to appeal against the judgment and order of the learned Additional Sessions Judge, Delhi dated 02.05.2001 and 04.05:2001 in S.C.No. 65/96. The respondents had been made to face trial for the offences punishable under Sections 302/307/323/324/34 IPC.

By the impugned judgment the Trial Court acquitted all respondents/accused save the first i.e., Harish who had been convicted for the offence punishable u/s 304 Part (1) IPC and sentenced to undergo seven years imprisonment with fine. The said respondent i.e., Harish had appealed to this Court against his conviction and sentence by preferring Crl. A.No. 1324/2002. The order sheet in this case would disclose that on 27th November, 2006 this Court had been made aware of the appeal preferred by Harish and had directed the counsel to report as to what has transpired in that matter.

The order dated 22.03.2010 in Harish''s case i.e., Crl.A.No. 1324/2002 reads as follows :--

As per the report on the B/Ws issued against the appellant he has expired. A copy of the death, certificate has also been obtained by the police and placed on record. In view of the death of the sole appellant, the appeal stands abated.

It is thus apparent that the present petition has abated so far as the main accused Harish is concerned. The order sheet reveals that over the years several attempts wete made to serve the other respondents but unsuccessfully. We have gone, through the records and considered the submissions on behalf of the State advanced by the learned APP as well as by the Amicus Curiae Mr. Sumeet Verma appointed to assist this Court.

The prosecution had alleged that on 02.11.1986 at about 10.30 pm PW-1 Rajiv Sharma was in the house of his uncle. He claimed to have gone there with some others when he found that the accused were playing cards. Adarsh Kumar Sharma asked them to leave as they were blocking the way. It was alleged that one of the card players i.e., Nandu Balmiki threatened that he would not leave the way. The prosecution further alleged that the other card player Kuldeep Balmiki picked up sticks and started abusing Adarsh Kumar PW-1 enquired as to the cause for the abuses. The prosecution alleged that at this stage the respondent Harish and Satish started beating them. Harish is then alleged to have told the other accused to catch hold of the PW-1 and his friend Adarsh Kumar. Satish caught hold of Ashok Kant and the accused i.e., respondent no. 1 Harish Jullah gave a knife blow upon the latter (i.e., Ashok Kant). Mukesh and Kuldeep also gave danda blows. Harish is alleged to have given knife blows to Arvind Kumar also. This incident was reported to the police and an FIR was registered. The injured were removed to the hospital and treated. Subsequently, Ashok Kant died on 04.11.1986. The respondents-accused were charged with committing offences after the investigation was completed and a chargesheet was filed by the police. They claimed to be not guilty and faced trial The Trial Court held that Harish was guilty of the offence punishable u/s 304 Part (1) IPC and at the same time concluded that the others did not share the common intention of causing death or such fatal injuries as resulted in the death of the deceased Ashok Kant and, therefore, they were acquitted.

The Trial Court noticed that so far as the role of Harish and other co-accused were concerned, the prosecution''s allegations were doubtful. In concluding so, the Trial Court was considerably influenced by the fact that the brief facts of the case which accompanied the inquest proceedings did not name the other co-accused. Furthermore, the nature of the attack and its immediate provocation was such that the Court held that the surviving co-accused, respondents were entitled to benefit of doubt. The findings of the Trial Court in this regard are as follows :-

...If this story of the prosecution is to be believed there was no justification of the SHOAO of the cafe to mention only the name of Harish as the assailants in the brief facts Ex.PW12/B. APP on the other hand contended that not mentioning of the name of all the accused persons in the brief facts itself Would not throve the case of the prosecution and would not make the story false or unbelievable. In my opinion, though not mentioning the name of all the accused persons itself would not falsified the case about the injuries caused to the deceased, and the injured but it would, definitely creates a doubt in the story of the prosecution at least, so far the prosecution allegations against the other accused i.e., Kuldeep, Nandoo and Satish, not named in brief facts Ext.PW.12/B. As per rukka the allegations are against accused Satish that he caught hold of deceased, even this fact is missing in the brief facts. So far as the accused Harish is concerned there is no doubt that he inflicted injuries with knife. The counsel further contended that site plan of the case is not a proper site plan and the positions of the accused or of the injured etc. etc. have not been shown. Though this is correct that positions of the assailants and the injured have not been shown, however, the place of occurrence etc. has been shown in the site plan. However, these have been shown in the sealed site plan Ext. PW3/A. The objection of the site plan taken by the counsel is not sustainable.

Counsel for accused Kuldeep, Nandu and Satish contended that even as the allegations Sec. 34 is not attracted at all against these accused persons for the act done by accused Harish. Though he strongly disputed the rukka Ext. PW.6/A on the ground that same is an afterthought. The story of rukka is missing in the brief facts Ext.PW.12/B. According to him even as per the allegations in the rukka re-produced in FIR some persons were playing cards at 2/3 places in the gali and they were asked to leave the way for going, on this accused Nandu Balmiki stand up and said that he is not the servant of any person and would not give any way. The other accused Kuldeep took out the danda and said that "In Sallo Ko Abhi Rasta Dette Hain" started abusing. When it was objected then Satish, Harish started giving beating. According to the counsel this incident is over and in the meantime Harish asked others to caught hold and said that they should not go away. Harish took out the knife from his pocket and started giving blows with knife. Though there is allegations that Kuldeep gave danda blow and Nandu gave blows with fists and legs. Even as per, this rukka (FIR) there is no allegations against accused Kuldeep and Nandu whether they caught hold any of the persons on asking of Harish. Though the allegations is against Satish hat he caught hold the deceased Ashok Kant Sharma and Harish gave him knife injuries on his abdomen and chest. But since the name of Satish as referred above is missing in the brief facts and in view of further contradictions may be minor in nature in the statement of the witnesses, I am of the view that even accused Satish cannot be held responsible for the injuries caused to the deceased Ashok Kant. It can''t be believed that accused Satish was holding deceased Ashok Kant when the injuries were caused to him by accused Harish. Even it cannot be presumed that when 2/3 groups were playing cards all should know about keeping of the knife by accused Harish definitely the incident occurred in the spur of moment when the way was asked by the complainant to the persons who were playing cards. The common intention of the accused persons has not been proved by the prosecution nor it can be inferred from the facts and circumstances of the case.....

From the above facts and circumstances of the case, I am of the view that the prosecution has established beyond all reasonable doubt that it is the accused Harish who inflicted knife injuries to the deceased Ashok Kan and the other injured. So far the other accused Kuldeep, Nandu and Satish are concerned, the prosecution has failed to prove about their common intention to share the intention of accused Harish of causing injuries or having the knowledge what type of injuries are being caused. Even there is doubt about their presence at the place of occurrence. There is doubt also about what actual act was done by them....

We have considered the submissions of counsel. The incident in this case took place nearly 25 years ago i.e., on the night intervening 01.11.1986 at about 11.00 pm. After the respondents faced a lengthy trial-spanning almost 15 years three of them were acquitted by the Trial Court giving them the benefit of doubt having regard to the doubtful evidence led against them. The first respondent Harish was convicted u/s 304 Part (1) IPC and he died during the pendency of these proceedings and the appeal preferred by him is abated. It has been repeatedly reiterated that the standards to be applied by the High Court while considering the petitions for leave to appeal against acquittals is one where the prosecution establishes substantial and compelling reasons, which by and large are confined to serious or grave mis-appreciation of evidence, wrong application of law and an approach which would lead to complete miscarriage of justice. In the present case, the Trial Court has listed various grounds on which it acquitted the respondents/accused. All of them, to our mind, are reasonable and none of them can be termed as misapplication of law or wrongful appreciation of the evidence placed before the Court by the prosecution.

Applying the standards applicable in regard to leave petition (i.e. whether there exists substantial or compelling reasons for the High Court to permit an appeal), we are satisfied that the acquittal recorded by the Trial Court is based on sound reasoning and analysis which does not call for interference.

In view of the above, we are satisfied that there are no substantial or compelling reasons to grant leave to appeal to the State against the impugned judgment. In the circumstances, the petition is unmerited and is consequently dismissed.