VIJAY KR.

AGGARWAL 22, Central Lane, Bengali Market, New Delhi-110001

(A.I.C.W.A, F.C.A., L.L.B)

MUDIT JAIN Chamber No. 251, Patiala House, New Nelhi-110001

ADVOCATE

136 C LIST OF JUDGMENT ON OPPOSING APPEAL AGAINST CONVICTION -

COMPLAINANT / PROSECUTION SIDE.

PAGE
SR.N TITLE CITATION REMAKRS
NO.

A
APPEAL AGAINST CONVICTION NOT TO BE
LIGHTLY INTERFERED WITH
PARA 17 - COURT SHOULD
BE WARY OF
INTERFERING WITH THE
TRIAL COURT’S
FINDINGS, UNLESS THERE
IN THE HIGH ARE SUBSTANTIAL AND
COURT OF DELHI COMPELLING REASONS,
CRL. A. 21/1998 WHICH MAY INCLUDE
DECIDED ON THE TRIAL COURT’S
28.02.2011 FINDINGS BEING
RAJPAL VS THE STATE
1 HON’BLE PALPABLY WRONG ON 1-10
(NCT OF DELHI)
JUSTICE MR. THE FACTS; OR BEING
JUSTICE S. THE RESULT OF AN
RAVINDRA BHAT ERRONEOUS
MR. JUSTICE G. P. APPRECIATION OF LAW,
MITTAL OR APPROACH BEING
PATENTLY ILLEGAL OR IF
THE JUDGMENT WOULD
LEAD TO GRAVE
MISCARRIAGE OF
JUSTICE.
 1

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 17.02.2011

Decided on: 28.02.2011

+ CRL. A. 21/1998

RAJ PAL ..... Appellant

Through: Sh. Sumeet Verma, Amicus Curiae with appellant in person.

Versus

THE STATE (NCT OF DELHI) ..... Respondent

Through: Sh. Jaideep Malik, APP, for the State.

CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G. P. MITTAL

1. Whether the Reporters of local papers YES

may be allowed to see the judgment?

2. To be referred to Reporter or not? YES

3. Whether the judgment should be YES

reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT

%
1. This is an appeal against a judgment and order of the learned Additional Sessions Judge,
dated 14.07.97, convicting the appellant in this case, of the offence punishable under Section
302, IPC.
2. The prosecution story was that frequent frictions used to occur between Smt. Sushma (the
deceased) and her husband, Sula Ram, the main cause of which was his alleged alcoholism. It
was alleged that according to the prosecution, one Vijay a tenant on the second floor of Sula
Ram’s house, used to associate him (Sula Ram) in drinking binges. In the previous two days,
Vijay had brought three boys to Sula Ram. The night before the incident, Vijay had brought the
boys, Rajpal, Kamal and Shanti to his room, whose names were known to Kumari Sukhi,
(daughter of the deceased and Sula Ram) since they were addressed so by Vijay. On 1 st October,

CRL. A. 21/1998 Page 1

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1995 at about 9.15 PM Sukhi (the daughter of Sula Ram and Sushma) was watching a television
programme, along with her younger brother Hemant. The deceased Sushma Devi, was also
watching television while lying on a cot. Sukhi’s elder brother had gone to sleep in the export
factory, located in front of their house. Her father was present at the shop located outside the
street. Suddenly Rajpal and Shanti entered their house and shut the door. Rajpal had a revolver
with him and Shanti had a long knife. Both threatened that in case they raised an alarm, all would
be killed. Rajpal placed his revolver on the left temporal region of her mother (the deceased) and
fired. They opened the door and went out. Kamal and Vijay were standing outside the door. They
all ran away. She along with her brother raised an alarm of “Pakro pakro” (“Catch-Catch”).
Her elder brother Chanderpal and neighbor Mahender Kumar chased the assailants along-with
the others. In the mean time the police also came from the front and nabbed Rajpal S/o Jai Singh,
A revolver was snatched and seized from his right hand. On his cursory search one charger with
four live cartridges were recovered from the right pocket of his trousers. Those cartridges were
taken into possession. On the statement of Kumari Sukhi case FIR No. 430 of 1993 was
registered at P.S. Kalyanpuri and investigation was initiated. Inquest proceedings were
conducted and dead body of Smt. Sushma was sent for post mortem examination. The accused
Rajpal was interrogated. The accused Sula Ram and Shanti S/o Gyan Singh were also arrested in
the case. Since accused Vijay and Kamal had absconded, they were proceeded under Sections 82
and 83 Cr. P.C. and they were later declared proclaimed offenders. After conclusion of the
investigation, the accused were challaned to face trial. During the course of trial, accused Sula
Ram died; consequently the proceeding against him, abated.
3. The Trial Court held that the testimonies of Sh. Mahender Kumar, PW-1 Chander Pal,
PW-3, Const. Rajinder PW-7 and S.I. Arun Kumar PW-14 proved the charges. The Court held
that the material facts, i.e the sound of gunshot, were an objective fact, not an imagined version.
The gunshot, followed by the cry for help, led to their rushing in that direction and seeing the
accused Rajpal running with a country made pistol in his hand. These facts established the
immediate casual relationship with the incident. Therefore, all the incidents could fairly be said
to be the incidents of the event under consideration and formed part of the same transaction, and
were relevant under the provisions of Section 6 of the Evidence Act. These witnesses heard a
gunshot at about 9.15 p.m. on 1.10.93. Thereafter, they heard the cry Pakro pakro (“Catch-
Catch”) and on rushing in that direction they saw the appellant fleeing with a country made

CRL. A. 21/1998 Page 2

 3

pistol in his hand. He was over-powered. The weapon contained a fired ballot in its barrel. The
appellant was immediately taken to the deceased’s house, where she was found dead, due to a
bullet injury. These circumstances formed a complete chain to prove that the appellant fired a
shot at Smt. Sushma Devi and caused her death. The chain so formed was complete in all
respects and left no room for him to slip away. The evidence led by the prosecution was of
conclusive nature and consistent only with the hypothesis of guilt of the accused.
4. Mr. Sumeet Verma, learned amicus, appearing on behalf of the appellant, argued that the
impugned judgment cannot be sustained, because it has glossed over several glaring
inconsistencies, which viewed cumulatively undermine the entire prosecution version. It is
submitted that the prosecution had heavily relied on the so-called eyewitness testimony of PW-3
Sukhia, who was allegedly present when the accused supposedly attacked and killed the
deceased. Counsel pointed out that this witness was most material, and did not support the
prosecution version at all. Similarly, submitted counsel, the other prosecution witnesses, who
were also family members, and actual eyewitnesses to the attack, i.e PW-4 Hemant Kumar did
not support the prosecution. Likewise, PW-5 Charan Singh and PW-8 Rajender Kumar (the latter
being a neighbor of the deceased and Sula Ram) did not support the prosecution version.
5. It is urged next that the Trial court has not considered that the material witnesses relied
upon to record the appellant’s conviction, i.e PW-1 Mahender Kumar, PW-2, Chander Pal, PW-7
Constable Rajinder and PW-14 SI Arun Kumar, have contradicted each other in necessary
particulars. Counsel contended that PW-1 claimed that he gave a chase, and apprehended Rajpal
single handedly, whereas PW-2 Chander Pal deposed that members of the public apprehended
the accused. Yet a third version was given by PW-7 and supported by PW-14, that the members
of the public and the police caught the accused. However, the fourth, and an official version, by
PW-12, another policeman, was that the members of the locality caught the accused. These
contradictions, coupled with the complete lack of any evidence of motive, and the inability of the
prosecution to prove the conspiracy angle between the four accused, and the fact that accused
Shanti had been acquitted on the same evidence, undermined the entire prosecution which had to
prove its case beyond reasonable doubt. Having alleged that Rajpal, Shanti and Vijay were roped
in to kill the deceased by Sula Ram, the collapse of that theory meant that the story could not be
relied on, even partly to convict even one accused. It was submitted, next, that the prosecution
was not even sure as to where the appellant was apprehended from. Chander Pal deposed that he

CRL. A. 21/1998 Page 3

 4

saw the chase from the top floor of the residence, and followed it. The improbability of his
version, submitted counsel, lies in the fact that, he says the appellant was apprehended 1000
yards, i.e almost a kilometer away from the place where he was standing. Given that the incident
occurred at night, it was well highly impossible to witness such an event, and yet be able to
distinctly identify anyone, much less the accused Rajpal, a stranger, with any degree of accuracy.
6. Learned counsel further argued that apart from the conflicting evidence regarding the
manner of giving chase to Rajpal, the Trial Court, on the same evidence, acquitted Shanti Prasad.
It is submitted that Rajpal was nowhere in the scene of crime and was in fact picked-up from his
residence, as is evident from the statement made by him under Section 313 Cr.PC. Learned
counsel submitted that the prosecution’s inability to prove its case with regard to presence of the
other accused, and the complicity while seeking to establish the alleged conspiracy should have
been given due weightage while appreciating the evidence. Learned counsel emphasized that the
conflicting versions of prosecution witnesses with respect to the chase and apprehension of
Rajpal even undermined the story of recovery of the katta. PW-1, it was submitted, claimed to
have single-handedly caught hold of Rajpal, which led to the recovery of the katta and the
disclosure statement, whereas the version of PW-2, PW-7 and PW-12 were entirely different. It
is stated that PW-2 had deposed that that the katta and cartridges were taken from the accused
and handed-over to the police whereas PW-7 stated that the Investigating Officer (IO) recovered
the katta from the accused. On the basis of this conflicting evidence on a material aspect, such as
apprehension and seizure of the weapon of offence, the Trial Court could not have concluded
that the prosecution had proved Rajpal’s guilt. It was lastly submitted that the singular lack of
any material or evidence hardly establish Rajpal’s motive to particularly pin-point him as a hired
killer is vital to the prosecution story – an aspect which was completely and erroneously ignored
by the Trial Court in its impugned judgment.

7. Learned APP submitted that while appreciating the evidence, the Court should not be
bogged-down by minor inconsistencies in the testimonies of witnesses but must focus on the
broad and material facts. If this approach were to be adopted, the Trial Court’s conclusions are
unassailable. It is urged that all the elements required to establish a fatal assault by the accused
Rajpal were proved beyond reasonable doubt. These were :

(a) The sound of gunshot;

CRL. A. 21/1998 Page 4

 5

(b) Accused Rajpal’s attempt to flee from the spot;

(c) The members of the public, including PW-1 – being given a chase;

(d) The apprehension of the accused by such members of the public and their being later
joined by the police – deposed to by PWs 1, 2, 7 and 14;

(e) Recovery of katta – spoken about by PWs 7 and 14;

(f) Disclosure statement – proved by PW-1;

(g) Death of Smt. Sushma as a result of gunshot injuries.

8. The learned APP submitted that if one carefully scrutinizes the testimonies of PWs 1, 2, 7
and 14, it is evident that the so-called “discrepancies” sought to be highlighted by the appellant
are not on material facts at all but that they pertain to inconsequential details. In this context, it is
urged that cumulatively, the testimonies of PWs-2, 7 and 14 clearly point to members of the
public giving a chase to the appellant Rajpal and his consequent apprehension and further that
the katta was recovered from his person. This was corroborated by PW-1 – the only difference
being that he claimed to have apprehended the appellant single-handedly. Learned APP
submitted that the latter detail is an obvious exaggeration which the Court would be within its
rights to ignore so long as all the material particulars, i.e. the chase, identity of the appellant, his
apprehension and recovery of the katta were proved.

9. It was submitted that the approach of the appellate Court in a criminal case ought not to
be one of re-appreciating the evidence and assessing the conclusions of the Trial Court’s
judgment as if the exercises were being done in the first instance. While the appellate Court is
under an obligation to carefully scrutinize the evidence, it should not second case the findings
and conclusions of the Court of first instance if the same are reasonable and based on credible
reasoning. Learned counsel here urged that the impugned judgment is a balanced one as is
evident from the circumstance that out of the four original accused, only two stood trial of which
one, i.e. Shanti Prasad was acquitted on the basis of inconsistencies in the evidence. Therefore,
the Trial Court’s general approach in the appreciation of evidence was correct. Mere errors
which have no material bearing on the conclusion of guilt or innocence of the accused should not
weigh with the appellate Court into reaching a contrary conclusion.

CRL. A. 21/1998 Page 5

 6

10. It is evident from the above discussion that the original case made-out by the prosecution
was a murderous assault upon the deceased Sushma, as a result of conspiracy hatched by her
husband Sula Ram. It is a matter of record that Sula Ram died during the trial. Some of the co-
conspirators who were assigned different roles stood trial. The appellant Rajpal was alleged to
have killed the deceased after breaking into her house when she was watching television with
two of her children. The prosecution had also alleged that one Shanti Prasad, a key accused was
brandishing a sword, and had accompanied Rajpal. Rajpal and Shanti Prasad stood trial. The
third co-accused absconded. During the trial, some prosecution witnesses, including two
members of the deceased’s family, PWs-3 and 4 turned hostile and did not support the
prosecution. Likewise, PWs 5 and 8 turned hostile.

11. The Trial Court, while recording the appellant Rajpal’s guilt, relied on the testimonies of
PWs 1, 2, 7 and 14. The first three of these claimed themselves to be the eyewitnesses to the
incident at different - but overlapping stages. PW-2, the son of the deceased stated that he was on
the rooftop when he saw the accused running from his house; they were at a distance of about
300-350 yards. According to him, the accused was apprehended by people of the locality at a
distance of 1000 yards from his house after Rajpal was given a chase. This witness stated that
members of the general public handed over Rajpal to the police as well as the revolver, a fired
cartridge and four live cartridges which he was carrying with him. According to him, there were
five persons at the spot where the accused Rajpal was apprehended and about 100-150 persons
collected at the place of incidence. PW-1 was sitting in his house when he heard a sound of
gunshot. He saw 2-3 persons running towards the bus stand and immediately heard PW-3 raising
alarm, crying-out to catch them. He claims to have chased the assailants and caught one of them,
i.e. the appellant. According to him, one SI Arun Kumar, in the meanwhile, reached the spot
along with Constables. This witness categorically stated that he apprehended the appellant. PW-1
stated that the katta was loaded with cartridges and four live cartridges were recovered from his
possession. Crucially, this witness states that the accused gave Disclosure Statement to the IO in
his presence; he also proved the Seizure Memo in respect of the katta and the seizure memo in
connection with four live cartridges, Ex. PW-1/C, Ex. PW-1/D and Ex. P-3/1 to 4. He also
identified the fired bullet, Ex. P-2. In his cross-examination, PW-1 mentioned that the deceased’s
house was at a distance of 10/11 yards from his house and that the road leading to the bus stand

CRL. A. 21/1998 Page 6

 7

was in front of his house. According to the witness, 15-20 minutes after the appellant was
apprehended, he was taken to the spot of the incident.

12. PW-7 corroborates the testimony of PW-2 by deposing that he had heard the noise of
some fire-arm as well as cry of “Pakdo” “Pakdo” and ran to the place where he saw a moving
crowd. According to PW-7, 20-25 persons were chasing the appellant, who was running alone.
PW-7 along with PW-14 and Constable Satish, with the help of members of the public caught the
accused, who had a katta with him. The IO, PW-14 recovered the katta, four live cartridges and
one fired cartridge from the katta from the accused’s pocket. PW-14 supports the version of PW-
7. He also stated that Chander Pal, PW-2 was amongst those who chased the appellant.

13. It is apparent from the previous narrative that PW-1, PW-2 and the two police witnesses,
PW-7 and PW-14 were eyewitnesses to the chase given to the appellant, his nabbing, recovery of
the weapon of offence from his hand, and the subsequent inspection of the spot of the
occurrence. The appellant’s argument is that there are grave and serious inconsistencies with
regard to their respective versions, which, taken together with the complete lack of motive, as far
as he is concerned, should result in the court giving him the benefit of doubt.
14. The Trial Court, in the impugned judgment, recorded its findings as follows:
“13. Testimony of Sh. Mahender Kuamr, Chander Pal, Const. Rajinder and S.I.
Arun Kumar let us know that all the four witnesses have heard a sound of bullet
fire, followed by an alarm of “Catch-Catch”. They ran in the direction of the
sound and found accused Rajpal running along with a country made pistol in his
hand. Rajpal was apprehended. Country made pistol was checked and one used
cartridge was found embedded in the barrel of the said country made pistol. Four
live cartridges were also recovered from the possession of Rajpal. Accused
Rajpal was taken to the house of Smt. Sushma Devi, who was found lying dead on
a cot. She has received a bullet injury on her temporal region. The evidence so
adduced by the prosecution speaks about the facts which are so connected with
the fact in issue as to form part of the same transaction. The testimony of these
witnesses are relevant under Sec. 6 of the Evidence Act. The provision of the said
section embody the rule of admission of evidence relating to what is commonly
known as res-gestae. The essence of the doctrine of res-gestae in evidence is that
the facts which though not in issue are co connected with the fact in issue as to
form part of the same transaction and thereby become relevant like fact in issue.
Res-gestae means everything that may fairly be considered as incident of the
event under consideration. Herein the case the event under consideration is that
the death of Smt. Sushma Devi was caused by firing a shot at her with a point
blank range. No evidence has come over the record as to who fired at her. But it
has come over the record that Sh. Mahender, Chander Pai, Const. Rajinder, S.I.

CRL. A. 21/1998 Page 7

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Arun Kumar head a sound of bullet fire, followed by the noise of “Catch-Catch”.
All the four rushed in the direction from where the sound of bullet fire and alarm
for help were coming. Accused Rajpal, present before the court, was seen
running near the house of deceased Sushma Devi. He was having a country made
pistol in his hand. He was chased and overpowered. Country made pistol was
snatched from him and on checking a fired bullet was found embedded in its
barrel. He was brought at the house of Smt. Sushma Devi, where she was found
dead after receipt of a bullet injury over her temple. The incidents, above
referred, can fairly be considered as the incidents of the events under
consideration. It is a settled proposition of law that a transaction may last for
hours, days or for weeks. The incidents may consist of sayings and doing of
anyone absorbed in the event whether participant or by-standard, they may
compromise things left undone as well as things done. They must be necessary
incidents of the litigated act in the sense that they are part of the immediate
preparation for or emanations of such act and are not produced by the calculated
policy of the actors. They are the act talking for itself, not what people say when
talking about the act. In other words, they must stand on an immediate casual
relation to the act, a relation not broken by the inter position of voluntary
individual witnesses, seeking to manufacture evidence for itself.
14. The incident deposed by Sh. Mahender Kumar, Chander Pal, Const.
Rajinder and S.I. Arun Kumar are the necessary incidents of the event that the
death of Smt. Sushma was caused. The factum of their hearing a sound of bullet
fire are emanation of such act and were not produced by calculated policy of
these witnesses. On hearing the bullet sound, followed by the alarm for help, they
rushed in that direction and saw accused Rajpal running with a country made
pistol in his hands. These facts itself speak about the immediate casual relation of
these incident to the ones under consideration. Therefore, all these incidents can
fairly be said to be the incidents of the event under consideration and form part of
the same transaction. Therefore, these incidents are relevant under the
provisions of Section 6 of the Evidence Act.
15. The aforesaid witnesses heard a sound of bullet fire at about 9.15 p.m. on
1.10.93. Soon after the said sound they heard the alarm of “Catch-Catch” and
on rushing in that direction they saw accused Rajpal running with a country made
pistol in his hand. He was over-powered. Pistol was found containing a fired
ballot in its barrel. Accused Rajpal was immediately taken to the house of Smt.
Sushma Devi where he was found dead, on receipt of bullet injury. These
circumstances form a complete chain to the effect that it was accused Rajpal who
fired a short at Smt. Sushma Devi and caused her death. The chain so formed is
complete in all respect and leaves no room for accused Rajpal to slip away. The
evidence adduced by the prosecution is of conclusive nature and consistent only
with the hypothesis of guilt of the accused. The circumstances are not cap able of
being explained by any other hypothesis, except the guilt of the accused.
Therefore, the evidence above referred can be used to record a finding to the
effect that it was accused Rajpal who had caused the death of Smt. Sushma Devi.
For application of circumstantial evidence in a given case, the law has been laid
in the judgments in Pandala Veera Reedy (AIR 1990 S.C. 79), Ashok Kumar

CRL. A. 21/1998 Page 8

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Srivastava (1992 Cr.L.J.1104), Dhanjay Chatterjee (J.T. 1994 (1) S.C. 33) and
Balvinder singh (1996) Crl.L.J. 883). Using the above precedents, the
circumstantial evidence referred above has been relied and a finding is recorded
that it was accused Rajpal who has caused the death of Smt. Sushma Devi.”

15. It is no doubt true that there are some variations as to the version which led to the
nabbing and arrest of the appellant. PW-1 states that he gave a chase, and nabbed the appellant,
and later, the police joined him; PW-2 (who claims to have seen the chasing and nabbing of the
accused from the top floor) witnessed the chase by members of the public, and apprehension of
the appellant; PW-7 and PW-14 state that the appellant was chased by members of the public and
the police, before he was caught. These are discrepancies no doubt. Yet, one can see a broad
pattern, in these depositions, i.e of a chase, given by members of the public, police arriving (and
joining the chase), nabbing, recovery of the katta. PW-1’s claim can be put down at best to an
exaggeration, whereby he wishes to claim the credit exclusively for catching the culprit. Yet, that
does not detract from the objective facts, pertaining to hearing of gun-shot, the appellant running,
being chased, later caught, being taken into custody and recovery of the weapon of offence, from
him. The court is also conscious of the circumstance that the accused did not cross-examine PW-
1 about the recovery of articles, nor PW-12, about the ballistic report (PW-12/L), which says that
the katta recovered from him was the one which fired the bullet that killed the deceased.
16. In a criminal trial, it is to be remembered that witnesses often are examined considerable
time after the event. Most human beings have imperfect recollection of past events, or their
sequence. When it relates to crime, like in the present instance, the court is viewing the narrative
of witnesses who had seen the incidents simultaneously, from different points. PW-2 saw it from
the roof top; PW-1 saw the accused at close quarters, and was joined later by other members of
the public (also corroborated by PW-1 and PW-12, PW-7 and PW-14). The differing versions
can be put down to fading memories, and the varied impressions gathered on the assimilation of
objective facts. The Supreme Court, speaking about minor discrepancies in the witnesses’
testimonies, has cautioned against a rigid approach, in its decision reported as Dinesh Kumar v.
State of Rajasthan, (2008) 8 SCC 270, in the following words:

"11. It is to be noted that PWs. 7 and 13 were the injured witnesses and PW 10 was
another eyewitness and was the informant. Law is fairly well settled that even if acquittal
is recorded in respect of the co-accused on the ground that there were exaggerations and
embellishments, yet conviction can be recorded if the evidence is found cogent, credible

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and truthful in respect of another accused. The mere fact that the witnesses were related
to the deceased cannot be a ground to discard their evidence.”

17. This court, acting as an appellate Court, is no doubt obliged to appreciate the evidence
led during the trial, and consider the soundness of the reasoning in the impugned judgment. Yet,
the Court should be wary of interfering with the Trial Court’s findings, unless there are
substantial and compelling reasons, which may include the Trial Court’s findings being palpably
wrong on the facts; or being the result of an erroneous appreciation of law, or approach being
patently illegal or if the judgment would lead to grave miscarriage of justice (Ref. Chandrappa &
Others v. State of Karnataka (2007) 4 SCC 415).
18. Upon consideration of all the materials on record, this court is of the opinion that the
findings and sentence recorded by the Trial Court do not call for interference. The appeal fails
and is accordingly dismissed.

S. RAVINDRA BHAT, J

G. P. MITTAL, J
FEBRUARY 28, 2011

CRL. A. 21/1998 Page 10