JUDGMENT
R.S. Sodhi, J.
1. Criminal Appeal No. 807 of 2000 seeks to challenge judgment and order of Additional Sessions Judge, Kakardooma Courts, Delhi in Sessions Case No. 161 of 1993, arising out of F.I.R. No. 427 of 1991, registered at Police Station Bhajan Pura, whereby the learned judge vide her judgment dated 11.12.2000 has held the appellants, Ram Kumar and Rambir @ Lilu, guilty for offence under Section 302/34 IPC. Further vide her orders dated 11.12.2000 and 14.12.2000, has sentenced the appellants to life imprisonment together with fine of Rs. 10,000/- each and in default of payment of fine, simple imprisonment for five months each under Section 302/34 IPC.
2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in the judgment under challenge are as under:
At about 11:30 AM information was received at the police station Bhajan Pura about some incident at House No. C-71/12, Gali No. 1, Bhajan Pura on which Asstt. Sub Inspector on emergency duty along with the police constable reached the spot of occurrence. Satpal who was fatally injured was sent to the GTB hospital along with Ct. Jeet Singh, where he was declared dead. On the basis of statements of two eye witnesses and other evidence collected on investigation the police challaned four persons namely Ram Kumar, Lilu @ Rambir, Naval and Jai Karan. During the pendency of trial, Jai Karan and Naval expired. All the four were charged with murder punishable under Section 302/34 IPC. All the four of the accused pleaded not guilty.
3. The prosecution in order to establish its case examined as many as 19 witnesses. It is argued by learned Counsel for the appellants that the prosecution has miserably failed in bringing on record any credible evidence to hold the appellants herein guilty of the offence. He contends that Naval and Jai Karan died during the trial and therefore, the role attributed to them could not be established during the trial. The material witnesses, according to the counsel, are PW-1, Constable Jeet Singh, PW-2, Constable Yashpal, PW-4, SI Rajpal, PW-10, Dr. L.K. Barua, PW-14, Sheela, PW-16, Dharam Pal, PW-17, Sushila and PW-19, Inspector Balkishan.
4. From the evidence on record, counsel submits that there is no credible witness who can be relied upon as being the eye-witness to the occurrence and that PW-16, Dharam Pal, has wrongly been relied upon by the trial court. Learned Counsel for the State contends that PW-16 is a natural witness. His presence at the spot cannot be doubted and that this witness has supported the prosecution’s case. The witness has rightly been relied upon by the trial court.
5. Having heard counsel for the parties, we have carefully examined the material available on record. We find PW-1, Constable Jeet Singh stating in court on oath that on 5.9.1991, he was posted at Police Station Bhajan Pura. On that date, SI Rajpal took him to the place of occurrence, i.e., Gali No. 1, C-71/12, Bhajan Pura, Delhi, where they found Satpal lying with injuries on the head. He along with Yashpal took the injured to the hospital in a TSR. Satpal was declared dead by the doctor at the hospital. In cross-examination, it has been elicited from the witness that when he reached the spot along with ASI Rajpal, he found Yashpal, brother of the injured and one lady at the spot.
6. PW-2, Constable Yashpal, has not supported the prosecution and in cross-examination, the witness states that he did not see the accused persons present in court at the place of incident and that the accused persons did not cause any injury to the deceased as they were not present there. He claims that his signatures were obtained on documents in the police station and were not prepared in his presence. This witness even in his examination-in-chief does not state that PW-16, Dharam Pal, was present at the spot. PW-4, SI Rajpal, states that on receipt of DD No. 5A on 5.9.1991 at about 11:30 a.m., he reached the house No.C-71/12, Gali No. 1, Bhajan Pura, along with PW-1, Constable Jeet Singh. He sent the injured, Satpal to GTB Hospital along with Constable Jeet Singh and PW-2, Constable Yashpal. Satpal was declared brought dead at the hospital. This witness also neither named PW-16, Dharam Pal, being present at the spot nor does he recorded the statement of PW-16 under Section 161 of Code of Criminal Procedure.
7. PW-10, Dr. L.K. Barua, conducted the postmortem on the body of Satpal and opined that the injuries were ante-mortem in nature and were caused by blunt force impact. Death was due to concussion resulting from head injury. In cross-examination, the witness admitted that the injuries could be caused by fall of a wall on the person of the deceased. PW-14, Sheela, is the sister-in-law of the deceased. She does not support the prosecution case. She was cross-examined but nothing material could be elicited. This witness is also totally silent regarding the presence of PW-16, Dharam Pal, at the spot.
8. PW-16, Dharam Pal, who appears to be the star witness of the prosecution alleges that he is an eye-witness. He states that on 28.7.1991 in the evening, Lilu, Ram Kumar, Jai Karan and Naval, who were already known to him, came to the plot of his brother, Satpal, at about 7:30 p.m. and began demolishing structures standing on the spot. They also forcefully tethered buffaloes on the spot. They attacked and assaulted some women who were present there. About one and a half months thereafter, the accused persons again picked up a quarrel, i.e., on 5.9.1991. His brother, Satpal, was repairing demolished wall when at about 11 or 11:30 a.m., Ram Kumar, Jai Karan, Naval and Lilu came to the house of Satpal at Gali No. 1, Bhajan Pura. The witness claims to be inside the house and Satpal was outside. At that time, accused Naval and Jai Karan caught hold of Satpal while Ram Kumar gave lathi blow and Lilu gave hockey stick blow on the head of Satpal. He also suffered injuries on his chest as well as his head. On hearing an alarm raised by the deceased, he came outside but was prevented from coming out by PW-2, Constable Yashpal and his relatives inside the house. Satpal died on the spot and was removed to the hospital in a TSR by Constable Yashpal and his relations. He has been confronted with his previous statement Exhibit PW 16/DA and a large number of improvements were noticed. He even goes on to depose that the police had not reached the spot till Satpal was taken to the hospital by Constable Yashpal.
9. PW-17, Sushila, wife of the deceased, Satpal, does not narrate as to what happened on 5.9.1991. PW-19, Inspector Balkishan is the Investigating Officer who admits that he did not verify whether PW-16, Dharam Pal, was present at the time of the incident. He admits that the witness Dharam Pal was not joined in the investigation by the investigating agency. He further admits that Dharam Pal was not present in the hospital when he first visited the hospital and that the deceased was not taken to the hospital either by Dharam Pal or Sheela.
10. The trial court, in order to arrive at its conclusion, based its judgment holding that PW-16, Dharam Pal, was a credible eye-witness, who could be relied upon and went on to convict the appellants accordingly. On re-evaluation of the material placed before us, we find that none of the witnesses corroborate the presence of PW-16, Dharam Pal at the spot at the time of the incident. On the contrary, he himself suggests that the deceased was taken to the hospital by Constable Yashpal before the police had arrived at the spot while contemporary document as also statement of witnesses suggest that it was PW-1, Constable Jeet Singh and Constable Yashpal who took the deceased to the hospital. It is also in evidence of Investigating Officer that Dharam Pal was neither associated with the investigation at any stage nor did he verifies to the presence of Dharam Pal at the spot and at the time of the incident.
11. In view of the nature of statement made by Dharam Pal and in view of the fact that his presence is not corroborated by any witness nor by any contemporaneous document, we feel it would be highly dangerous to base conviction on a testimony of this nature. His presence at the spot and his deposition as an eye-witness does not inspire confidence. Dharam Pal does not intervene in the quarrel. He did not take the deceased to the hospital. His statement under Section 161 of Code of Criminal Procedure was not recorded as an eye-witness by the Investigating Officer shortly after the incident. Dharam Pal has not joined the investigation and contradicts the prosecution’s case when he accuses Naval of giving a lathi blow on the head of the deceased. Having found PW-16 not a reliable witness, there is nothing on record to connect the accused with the commission of the crime.
12. In these circumstances, the prosecution has failed to prove its case beyond doubt. The judgment of the trial court which is based on the statement of PW-16, Dharam Pal, cannot be sustained. We, therefore, set aside the judgment under challenge dated 11.12.2000 as also the orders on sentence dated 11.12.2000 and 14.12.2000. We acquit the appellants, Ram Kumar and Rambir @ Lilu, of all the charges framed against them and allow Criminal Appeal No. 807 of 2000. Criminal M.B. No. 1660 of 2003 also stands disposed of. Appellants, who are in custody, shall be released forthwith if not required in any other case.